Exhibit 10.14


    LEASE
      AGREEMENT

     

    


     

    BY
      AND
      BETWEEN 

     

    NEW
      RIVER ASSOCIATES 

     

    AS
      LANDLORD 

     

    AND
      

     

    SANDSTROM
      AS SEEN ON TV FRANCHISING COMPANY 

     

    doing
      business as 

     

    As
      Seen On TV 

     

    AS
      TENANT


     

    FOR
      PREMISES LOCATED WITHIN 

     

    Arrowhead
      Towne Center

     

    Glendale,
      Arizona

     

     

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    TABLE
      OF CONTENTS 

     

    Article
      Page 

     

    

      
        	
                1.
                  FUNDAMENTAL LEASE PROVISIONS 

              	
                1

              
	 	 
	
                2.
                  PREMISES 

              	
                2

              
	 	 
	
                3.
                  CONSTRUCTION OF IMPROVEMENTS 

              	
                3

              
	 	 
	
                4.
                  TERM .

              	
                3

              
	 	 
	
                5.
                  RENT.

              	
                3

              
	 	 
	
                6.
                  SECURITY DEPOSIT 

              	
                5

              
	 	 
	
                7.
                  GROSS SALES .

              	
                6

              
	 	 
	
                8.
                  INDEMNITY AND INSURANCE 

              	
                6

              
	 	 
	
                9.
                  UTILITIES

              	
                8

              
	 	 
	
                10.
                  USE AND OPERATION

              	
                8

              
	 	 
	
                11.
                  SIGNS 

              	
                9

              
	 	 
	
                12.
                  REPAIRS, MAINTENANCE, IMPROVEMENTS AND COMPLIANCE WITH LAW

              	
                9

              
	 	 
	
                13.
                  SURRENDER OF PREMISES 

              	
                11

              
	 	 
	
                14.
                  ASSIGNMENT AND SUBLETTING 

              	
                11

              
	 	 
	
                15.
                  TRANSFER OF LANDLORD’S INTEREST 

              	
                13

              
	 	 
	
                16.
                  COMMON AREA

              	
                13

              
	 	 
	
                17.
                  LANDLORD’S RESERVATION OF RIGHTS 

              	
                13

              
	 	 
	
                18.
                  NOTICES 

              	
                15

              
	 	 
	
                19.
                  DEFAULTS BY TENANT

              	
                15

              
	 	 
	
                20.
                  LANDLORD’S REMEDIES 

              	
                16

              
	 	 
	
                21.
                  DEFAULTS BY LANDLORD

              	
                17

              
	 	 
	
                22.
                  COSTS OF SUIT 

              	
                17

              
	 	 
	
                23.
                  DAMAGE AND DESTRUCTION 

              	
                17

              
	 	 
	
                24.
                  CONDEMNATION 

              	
                18

              
	 	 
	
                25.
                  HAZARDOUS MATERIALS 

              	
                18

              
	 	 
	
                26.
                  SUBORDINATION AND ESTOPPEL 

              	
                19

              
	 	 
	
                27.
                  MISCELLANEOUS 

              	
                19

              


      

    

    


     

    Exhibits
      

     

    A
      Depiction of Center B Depiction of Premises C Provisions for the Design and
      Construction of the Premises D Certain Defined Terms E Center Rider F
      Intentionally Omitted G Monthly and Annual Sales Statement Form 

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    LEASE
      AGREEMENT

     

    


     

    THIS
      LEASE AGREEMENT
      (“Lease”) is made as of this day of 2007 (“Effective Date”) by and between
NEW
      RIVER ASSOCIATES,
      an
      Arizona general partnership (“Landlord”) and SANDSTROOM
      AS SEEN ON TV FRANCHISING COMPANY,
      a
      Nevada corporation (“Tenant”). 

     

    W
      I T N E S S E T H:
      

     

    In
      consideration of the rents to be paid and the covenants to be performed by
      Tenant, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
      the following described Premises, upon the following terms and conditions
      (capitalized terms used herein without definition shall have the meanings
      ascribed to such terms in Exhibit
      D):
      

     

    
      	1.	
              FUNDAMENTAL
                LEASE PROVISIONS 

            


    

     

    
      	1.1.	
              Center:
                Arrowhead
                Towne Center, located in the City of (Section
                2.1) Glendale,
                County of Maricopa, State of Arizona


            


    

     

    
      	1.2.	
              Premises: Space
                #2136 (Section
                2.2) 

            


    

     

    
      
        
          	1.3.	
                  Floor
                    Area of the 532
                    square feet (Section
                    2.2) Premises:
                    

                


        

      

    

     

    
      	1.4.	
              Term:
                From
                the Delivery Date until the Expiry Date, unless (Section
                4.1) sooner
                terminated pursuant to the terms of this Lease.


            


    

     

    
      
        
          	1.5.	
                  Required
                    Opening January
                    1, 2007 (Section
                    3.2) Date:
                    

                


        

      

    

     

    
      
        
          	1.6.	
                  Rent
                    January
                    1, 2007 Commencement
                    Date: 

                


        

      

    

     

    
      	
              1.7.
                

            	
              Expiry
                Date: 

            	
              December
                31, 2008 

            
	
              1.8.
                

            	
              Fixed
                Minimum 

            	
              Annual
                Fixed 

            	
              Monthly
                

            	 	
              (Section
                5.5) 

            
	 	
              Rent:
                

            	
              Dates

            	
              Minimum
                Rent 

            	
              *
                Fixed Minimum Rent 

            	
              *
                

            	 
	 	 	
              †-Expiry
                Date 

            	
              $47,880.00
                

            	
              $3,990.00
                

            	 	 
	 	 	
              †From
                the Rent Commencement Date 

            	 	 
	 	 	
              *Subject
                to the provisions of Section 5.5.1. 

            	 	 
	
              1.9.
                

            	
              Percentage
                Rent 

            	
              6%
                

            	 	
              (Section
                5.6) 

            
	 	
              Rate:
                

            	 	 	 
	 	 	 	 	 
	
              1.10. 

            	Annual
              Base Sales: Annual
              Monthly (Section
              5.6) Dates
              Base Sales**
              Base Sales**
              	 	 
	 	 	
               ‡
                -Expiry Date $798,000.00 $66,500.00 

               ‡From
                the Rent Commencement Date **Subject to increase pursuant to Section
                5.6.1
                

            	 	 


    

     

    
      	1.11.	
              Permitted
                Use: The
                Premises shall be used only for the sale at retail (Section
                10.1) of
                "As Seen On TV" merchandise, which shall include but not be limited
                to
                apparel and jewelry; provided, the Floor Area devoted to the display
                of
                the apparel and jewelry shall not exceed, in the aggregate, five
                percent
                (5%) of the sales Floor Area of the Premises. The Premises shall
                be used
                for no other use or purpose. 

            


    

     

    
      	1.12.	
              Trade
                Name: As
                Seen On TV (Section
                10.1) 

            


    

     

    
      	1.13.	
              Security
                Deposit: None
                (Article
                6) 

            


    

     

    
      	
              1.14.

            	
              Marketing
                Fund $1,596.00
                per annum, subject to increases pursuant (Section
                5.8) Charge:
                to
                Section 5.8 

            


    

     

    
      	1.15.	
              Center
                Hours: Monday
                through Saturday: 10:00 am to 9:00 pm and Sunday: 11:00 am to 6:00
                pm, or
                such other hours that the Center is open for business as such hours
                are
                designated from time-to-time by Landlord.


            


    

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    


    
      	
              1.16.
                

            	
              Radius:
                

            	
              5
                miles, measured from the outside boundaries of the Center, as the
                Center
                is constituted on the Effective Date. 

            	
              (Section
                10.4) 

            
	
              1.17.
                

            	
              Landlord’s
                Address For Notices: 

            	
              New
                River Associates 7700 West Arrowhead Towne Center Glendale, Arizona
                85308
                Attention: Center Manager 

            	
              (Section
                18.1) 

            
	 	 	
              With
                a copy of notices to: 

            	 
	 	 	
              New
                River Associates j Macerich Company P.O. Box 2172 401 Wilshire Boulevard,
                Suite 700 Santa Monica, California 90407 Attention: Legal Department
                

            	 
	
              1.18.
                

            	
              Tenant’s
                Address For Notices: 

            	
              SANDSTROM
                As Seen On TV Franchising Company 15974 North 77th Street, Suite
                102
                Scottsdale, AZ 85260 Attention: Timothy J. McCarthy 

            	
              (Section
                18.1) 

            
	
              1.19.
                

            	
              Address
                For Payment of Rent: 

            	
              New
                River Associates P.O. Box 52638 Phoenix, Arizona 85072-2638
                

            	 
	
              1.20.
                

            	
              Landlord’s
                Broker(s): 

            	
              Westcor
                Partners, LLC 

            	
              (Section
                27.6) 

            
	
              1.21.
                

            	
              Tenant’s
                Broker(s): 

            	
              None
                

            	
              (Section
                27.6) 

            
	
              1.22.
                

            	
              Guarantor(s):
                

            	
              Tradeshow
                Marketing Co Ltd. 

            	 
	
              1.23.
                

            	
              Rent
                Inquiry Address: 

            	
              Landlord:
                Phone: (602) 953-6200 Email: arrowheadtowncenter_ar@westcor.com
                

            	
              (Section
                5.1) 

            
	 	 	
              Tenant:
                SANDSTROM As Seen On TV Franchising Company, dba As Seen On TV 15974
                North
                77th Street, Suite 102 Scottsdale, AZ 85260 Attention: Timothy J.
                McCarthy
                480.254.6112 

            	 
	
              1.24.
                

            	
              Landlord’s
                Statement Address: 

            	
              New
                River Associates Macerich Shared Services Arrowhead Towne Center
                Attention: Sales Associate P.O. Box 2188 Santa Monica, CA 90406-2188
                Phone: (602) 953-6200 Facsimile: (602) 652-8801 Email:
                arrowheadtownecenter_salesreporting@westcor.com 

            	
              (Section
                5.6) 

            
	
              1.25.
                

            	
              Fixed
                Costs: 

            	
              $9,310.00
                per annum, subject to increases beginning January 1, 2008 (“First Fixed
                Costs Adjustment Date”) pursuant to Section 5.7.1. 

            	
              (Section
                5.7.1) 

            


    

    


    2.
      PREMISES 

     

    2.1.
      Center.
      The
      Center, as of the Effective Date, is known by the name set forth in Section
      1.1.
Exhibit
      A
      is an
      approximate depiction of the Center; however, the depiction of the Center on
      Exhibit
      A
      is not a
      representation, warranty or covenant of any kind by Landlord that all or any
      part of the Center is, will be, or will continue to be configured as indicated
      on Exhibit
      A.
      

     

    1  Premises
      and Floor Area.
      The
      approximate location of the Premises is depicted by crosshatching on
Exhibit
      B.
      Notwithstanding the depiction of the approximate location of the Premises as
      set
      forth at Exhibit
      B,
      the
      Floor Area of the Premises for all purposes is stipulated to be the square
      feet
      of Floor Area specified at Section 1.3 and in no event shall the Floor Area
      of
      the Premises as set forth at Section 1.3 be remeasured or otherwise adjusted.
      

    2  CONSTRUCTION
      OF IMPROVEMENTS 

     

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    
      	
              3.1. 

            	
              Condition
                of Premises.
                The Premises shall be delivered to Tenant in the condition set forth
                at
                Exhibit
                C.
                

            


    

    
      	3.2.
              	
              Tenant’s
                Work.
                There is no initial Tenant’s Work required pursuant to this Lease.
                

            


    

     

    2  TERM
      

    


    1  Term.
      This
      Lease shall be for the Term, unless sooner terminated pursuant to the terms
      of
      this Lease. 

     

    2  RENT
      

    


    5.1.
      Payment
      of Rent.
      Tenant
      shall pay all Rent to Landlord on the day(s) specified therefor, without notice,
      demand, deduction or offset, in lawful money of the United States of America,
      to
      the Address for Payment of Rent or at such other place as Landlord may from
      time-to-time designate in writing to Tenant. If Landlord so notifies Tenant
      in
      writing (and Tenant is able to reasonably comply), Rent payments shall be made
      by electronic money transfers in accordance with Landlord’s written directive
      therefor. Tenant shall be obligated to pay Rent when due regardless of whether
      Tenant receives a statement therefor. If Fixed Minimum Rent or any item of
      Additional Rent increases or decreases during the Term and if the amount of
      such
      increase or decrease has not been determined as of the date such Rent is to
      be
      paid, then (a) Tenant shall continue to pay such Rent in the amount payable
      for
      the immediately preceding month (or other period for which such Rent is due)
      and
      (b) within thirty (30) days after the date Landlord notifies Tenant of such
      adjusted Rent, Tenant shall pay to Landlord any additional amount owed due
      to
      such adjusted Rent or if Tenant has paid Rent in excess of the adjusted Rent,
      such excess shall be credited against the next monthly payment(s) of Rent until
      such excess has been exhausted; however, within thirty (30) days following
      the
      Refund Date, any such excess shall be refunded to Tenant. Landlord and Tenant
      may each use the other’s Rent Inquiry Address to communicate to the other party
      any inquiries relating to the calculation of the various components constituting
      Rent or the payment of Rent. 

     

    5.2.
      Prorations.
      If the
      Rent Commencement Date begins on a day other than the first day of a month
      or if
      the Term expires on a day other than the last day of a month, then Fixed Minimum
      Rent, Costs, Marketing Fund Charges and Monthly Base Sales for such month shall
      be prorated. Unless otherwise provided, all prorations of Rent for fractional
      periods shall be based on the actual number of days in such month and the actual
      number of days in such year. If the Lease Year is less than twelve 

    (12)
      full
      calendar months, then Annual Base Sales for such Lease Year shall be an amount
      equal to the product obtained by multiplying the Annual Base Sales by a
      fraction, the numerator of which shall be the number of days in such Lease
      Year
      and the denominator of which shall be three hundred sixty-five (365). If the
      Premises are closed for any full or partial day during Center Hours, then
      Monthly Base Sales shall be prorated for the month, and Annual Base Sales shall
      be prorated for the Lease Year, in which such closure occurs. 

     

    5.3.
      Late
      Payments.
      If
      Tenant fails to pay any Rent to Landlord when due, Landlord shall be entitled
      to
      (a) interest on the unpaid Rent at the Agreed Rate from the date payment is
      due
      until the date payment is made and (b) a service charge equal to ten percent
      (10%) of the overdue amount. If payment is made by a check which is dishonored
      by the drawing bank, Tenant shall pay to Landlord a service charge equal to
      Fifty Dollars ($50.00) and, in addition, Landlord may require that all future
      payments of Rent shall be made by cashier’s check. Tenant acknowledges the late
      payment of Rent or the use of a dishonored check by Tenant will cause Landlord
      to incur costs and expenses not contemplated by this Lease, the exact amounts
      of
      which will be extremely difficult to ascertain, and that such service charges
      represent fair estimates of the costs and expenses which Landlord would incur
      by
      reason of Tenant’s late payment of Rent or use of a dishonored check. The
      imposition of such interest and service charges shall neither constitute a
      waiver of Tenant’s default with respect to such overdue amount nor prevent
      Landlord from exercising any other right or remedy available to Landlord.


     

    5.4.
      Acceptance.
      The
      acceptance by Landlord of partial payment of any sum due from Tenant shall
      not
      be deemed a waiver by Landlord of any of its rights to the full amount due
      or an
      admission by Landlord of the accuracy of any Monthly Sales Statement or any
      Annual Sales Statement submitted by Tenant. Any endorsement or statement on
      any
      check or accompanying letter from Tenant shall not be deemed an accord and
      satisfaction. Any Rent payments received from Tenant or any other person shall
      be conclusively presumed to have been paid on Tenant’s behalf; however, in no
      event shall the foregoing be construed as requiring Landlord to accept any
      Rent
      from any person other than Tenant. The acceptance by Landlord of payment from
      any person other than Tenant shall not be deemed to be a waiver by Landlord
      of
      any provision of this Lease or to be a consent to any Transfer or to be a
      release of Tenant from any obligation under this Lease. The acceptance by
      Landlord of delinquent payment shall not constitute a waiver of any default
      and
      shall not constitute a waiver of timely payment of the particular payment
      involved. The acceptance by Landlord of any Rent shall not constitute a consent
      by Landlord or a waiver of any of Landlord’s rights under this Lease.


     

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    5.5.
      Fixed
      Minimum Rent 

     

    5.5.1.
      Fixed
      Minimum Rent.
      From
      and after the Rent Commencement Date, Tenant shall pay in equal monthly
      installments, in advance on the first day of each month (except for the first
      installment, which shall be paid on the Rent Commencement Date), the Fixed
      Minimum Rent. Commencing on the first day of January next following the Rent
      Commencement Date and on each January 1st
      thereafter (each such date is sometimes referred to as the “Rent Adjustment
      Date”) the Fixed Minimum Rent then in effect (or which would then have been in
      effect absent any abatement or reductions in Fixed Minimum Rent, except for
      permanent reductions in Fixed Minimum Rent due to a permanent Taking) shall
      be
      increased (but not decreased) by a percentage equal to two and one-half (21/2)
      times the percentage increase in the Index published for the month which is
      four
      (4) months prior to the Rent Adjustment Date compared to the Index published
      for
      the month which is sixteen (16) months prior to such Rent Adjustment Date;
      however, in no event shall Fixed Minimum Rent be increased on any Rent
      Adjustment Date by more than 3%, calculated on a Cumulative Basis. 

     

    5.5.2.
      Grand
      Opening Event.
      From
      and after the date of each Grand Opening Event, Fixed Minimum Rent (including
      all increases) shall be increased by ten percent (10%). 

     

    5.6.
      Percentage
      Rent 

     

    5.6.1.
      Percentage
      Rent.
      From
      and after the Rent Commencement Date, in addition to Fixed Minimum Rent to
      be
      paid by Tenant, Tenant shall pay Percentage Rent to Landlord. Percentage Rent
      shall be payable monthly in arrears and adjustments for any overpayment or
      underpayment shall be made each year, all as more particularly described in
      this
      Section 5.6. If Fixed Minimum Rent during any Lease Year is reduced pursuant
      to
      a provision in this Lease or by express written agreement between Landlord
      and
      Tenant, then the Annual Base Sales and Monthly Base Sales shall likewise be
      reduced by a percentage equal to the percentage decrease in the Fixed Minimum
      Rent payable for the period during which the change in Fixed Minimum Rent is
      in
      effect. On each Rent Adjustment Date, (a) Annual Base Sales shall be adjusted
      to
      the sum determined by dividing the Annual Fixed Minimum Rent (as adjusted
      pursuant to Section 5.5.1 on such Rent Adjustment Date) by the Percentage Rent
      Rate and (b) Monthly Base Sales shall be adjusted to the sum determined by
      dividing the Annual Base Sales, as hereinabove adjusted, by twelve (12).


     

    5.6.2.
      Monthly
      Sales Statements.
      Within
      ten (10) days after the end of each calendar month, Tenant shall (a) deliver
      to
      Landlord at Landlord’s Statement Address a Monthly Sales Statement specifying
      the Gross Sales made for the preceding calendar month together with details
      of
      any Permitted Exclusions and (b) shall pay to Landlord at the Address for
      Payment of Rent an amount equal to the product obtained by multiplying the
      Percentage Rent Rate by the amount of Gross Sales during the preceding calendar
      month that are in excess of the Monthly Base Sales for such month. 

     

    5.6.3.
      Annual
      Sales Statements.
      Within
      twenty (20) days after the end of each Lease Year (including, without
      limitation, the last Lease Year of the Term), Tenant shall (a) deliver to
      Landlord at Landlord’s Statement Address an Annual Sales Statement specifying
      the Gross Sales for each month of the preceding Lease Year together with details
      of any Permitted Exclusions and 

    (b)
      pay
      to Landlord at the Address for Payment of Rent any additional Percentage Rent
      owed to Landlord as a result of the following annual adjustment. The aggregate
      amount of Percentage Rent payable by Tenant for all months of such Lease Year
      as
      set forth in the Annual Sales Statement shall be compared to the total amount
      of
      Percentage Rent paid by Tenant during each month of such Lease Year covered
      by
      the Annual Sales Statement. If Tenant shall owe any additional Percentage Rent,
      the same shall be paid as hereinabove set forth. If Tenant has overpaid to
      Landlord any Percentage Rent, then Tenant shall be credited the amount of such
      overpayment against the next monthly payment(s) of Percentage Rent until such
      overpayment has been exhausted; however, within thirty (30) days following
      the
      Refund Date, any such excess sums not previously credited shall be refunded
      to
      Tenant. If Landlord so notifies Tenant in writing (and Tenant is able to
      reasonably comply), Monthly Sales Statements and Annual Sales Statements shall
      be submitted by Tenant to Landlord electronically, in accordance with Landlord’s
      written directive therefor. 

     

    5.7.
      Costs
      

     

    5.7.1.
      Fixed
      Costs.
      From
      and after the Rent Commencement Date, Tenant shall pay in equal monthly
      installments, in advance on the first day of each month (except for the first
      installment, which shall be paid on the Rent Commencement Date), the Fixed
      Costs. Commencing on the First Fixed Costs Adjustment Date and on each January
      1st
      thereafter (each such date is sometimes referred to as the “Fixed Costs
      Adjustment Date”), the Fixed Costs then in effect (or which would then have been
      in effect absent any abatement or reductions in Fixed Costs) shall be increased
      (but not decreased) by a percentage equal to two and one-half (21/2) times
      the
      percentage increase in the Index published for the month which is four (4)
      months prior to the Fixed Costs Adjustment Date compared to the Index published
      for the month which is sixteen (16) months prior to such Fixed Costs Adjustment
      Date (whether or not Tenant is in occupancy of the Premises or this Lease is
      in
      effect as of any Fixed Costs Adjustment Date); however, in no event shall Fixed
      Costs be increased on any Fixed Costs Adjustment Date by more than 5%,
      calculated on a Cumulative Basis. 

     

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    5.7.2.
      Tenant’s
      Share of Variable Costs.
      From
      and after the Rent Commencement Date, Tenant shall pay to Landlord Tenant’s
      Share of Variable Costs in the time frames and in the manner herein set forth
      in
      this Section 5.7. Landlord shall notify Tenant from time-to-time of Landlord’s
      estimate of the monthly installments payable by Tenant as Tenant’s Share of
      Variable Costs. From and after the date of any such notice, Tenant shall pay
      to
      Landlord such estimated monthly amounts, in advance, on or before the first
      day
      of each month. Following the end of each Lease Year, Landlord shall submit
      to
      Tenant a statement containing the amount of Tenant’s Share of Variable Costs for
      such Lease Year. If such statement discloses that there was an underpayment
      of
      Tenant’s Share of Variable Costs for such Lease Year, Tenant shall pay to
      Landlord the amount of such underpayment within ten (10) days after the date
      such statement is delivered to Tenant. If such statement discloses that Tenant
      made an overpayment of Tenant’s Share of Variable Costs for such Lease Year,
      Landlord shall apply the amount of the overpayment against the next
      installment(s) of Tenant’s Share of Variable Costs then due until such
      overpayment has been exhausted; however, within thirty (30) days following
      the
      Refund Date, any such excess sums not previously credited shall be refunded
      to
      Tenant. 

     

    5.7.3.
      Variable
      Cost Pool.
      Landlord shall have the right, from time to time, to equitably allocate some
      or
      all of the Variable Costs among different portions or user groups of the Center
      and other properties owned or managed by Landlord which are either adjacent
      to
      or which may otherwise comprise a part of the Center, or if certain Variable
      Costs are not attributable to all Occupants and/or an Occupant maintains a
      certain service and/or an Occupant pays its own Real Estate Taxes at that
      Occupant’s own expense and/or the Center contains separate tax parcels, then in
      any such event Landlord may, at Landlord’s sole and absolute discretion,
      establish equitable, alternative methods of allocating such Variable Costs
      (the
“Variable Cost Pool”). The Variable Costs within each such Variable Cost Pool
      shall be allocated and charged to the occupants within such Variable Cost Pool
      in an equitable manner as determined in Landlord’s good faith and reasonable
      business judgment. 

     

    5.8.
      Marketing
      Fund Charge.
      From
      and after the Rent Commencement Date, Tenant shall pay to Landlord the Marketing
      Fund Charge in equal monthly installments, on the first day of each month,
      in
      advance. Commencing on the first day of January next following the Rent
      Commencement Date and on each January 1st
      thereafter,
      the Marketing Fund Charge shall be equal to one hundred ten percent (110%)
      of
      the Marketing Fund Charge for the prior Lease Year. The Marketing Fund Charge
      shall be used to fund the Marketing Service. 

     

    5.9.
      Grand
      Opening Charge.
      For
      each Grand Opening Event (including any initial Grand Opening of the Center),
      Tenant shall pay to Landlord, within ten (10) days after Landlord bills Tenant,
      an amount equal to the Marketing Fund Charge payable for the then-current Lease
      Year (“Grand Opening Charge”), which amount shall be in addition to the
      Marketing Fund Charge and all other Rent. 

     

    1  Personal
      Property and Other Taxes.
      Tenant
      shall pay directly to Landlord or to the appropriate taxing authority, before
      delinquency, any and all taxes (including any excise, transaction, sales or
      privilege tax imposed upon Landlord on account of, attributed to, or measured
      by
      Rent), assessments and public charges levied, assessed or imposed by
      governmental authorities upon Tenant’s business, upon Tenant’s sales, upon Rent,
      upon Tenant’s leasehold interest, and upon all Personal Property and
      Improvements, as well as upon Tenant’s right to occupy, and do business at, the
      Premises. 

    2  SECURITY
      DEPOSIT 

    


    6.1.
      Security
      Deposit.
      Provided Tenant is the tenant entity specified on Page 1 of this Lease, Tenant
      shall not be required to deposit a Security Deposit with Landlord. Landlord
      reserves the right, as determined in Landlord's sole yet reasonable discretion,
      to require a Security Deposit from any Transferee taking possession of the
      Premises in accordance with Article 14 and, in such event, concurrently with
      Tenant's execution and delivery of an Assignment Instrument and/or Sublease
      Instrument to Landlord, Transferee shall deposit a Security Deposit with
      Landlord, which sum shall be held by Landlord as security for the faithful
      performance by Transferee of all of the terms, covenants and conditions of
      this
      Lease. The Security Deposit is neither an advance Rent deposit nor a measure
      of
      Landlord's damages in the event of Transferee's default. The Security Deposit
      may be used by Landlord to remedy any default by Tenant, to repair damage caused
      by Tenant to any part of the Center, and to undertake on Tenant’s behalf any
      Surrender Obligations which Tenant has failed to complete as of the date the
      Premises are surrendered to Landlord, as well as to reimburse Landlord for
      any
      amount which Landlord may expend by reason of Tenant’s default or to compensate
      Landlord for any other loss or damage which Landlord may suffer by reason of
      Tenant’s default. If any portion of the Security Deposit is so used or applied,
      Tenant shall, within ten (10) days after written demand, deposit cash with
      Landlord in an amount sufficient to restore the Security Deposit to the full
      amount set forth at Section 1.13. Landlord shall not be required to keep the
      Security Deposit separate from its general funds, and Tenant shall not be
      entitled to interest on the Security Deposit. Tenant may not elect to use any
      portion of the Security Deposit as a Rent payment although Landlord may elect
      to
      do so in the event Tenant is in default hereunder or is insolvent. Tenant shall
      not encumber or assign its interest in the Security Deposit. If Tenant fully
      and
      faithfully performs every provision of this Lease to be performed by it, the
      Security Deposit (less any amount which has been applied in the manner permitted
      by this Article 6), shall be returned to Tenant within thirty (30) days after
      the Refund Date. 

     

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    7.
      GROSS SALES 

     

    7.1.
      Definition
      of Gross Sales 

     

    7.1.1.
      Gross
      Sales Defined.
“Gross
      Sales” means the aggregate selling price of all goods, wares, merchandise,
      tickets, food, beverages and services sold, leased, licensed or delivered from
      any part of the Premises by Tenant and Tenant’s Occupants and shall include, but
      not be limited to, (a) sales or charges for cash or credit regardless of
      collections, (b) sales by vending devices, including coin telephones, (c)
      proceeds from audio games and video games, 

      (d)
      commissions and fees paid for the sale of lottery tickets, (e) rent income,
      (f)
      mail orders received or filled at the Premises, (g) electronic orders received
      or filled at the Premises (including, without limitation, orders made by use
      of
      the Internet, facsimile, telegraph, wire and telephone), 

      (h)
      all
      deposits not refunded to purchasers, (i) orders taken at the Premises although
      filled elsewhere, (j) fees, commissions and catalogue sales, (k) sales from
      solicitations, regardless of where conducted, by personnel operating from,
      or
      reporting to any person at, the Premises and 

      (l)
      all
      service, finance and interest charges on any type of account or note receivable
      to the extent the principal amount would constitute Gross Sales. 

    


    7.1.2.
      Permitted
      Exclusions.
      The
      following (collectively, “Permitted Exclusions”) shall not be part of Gross
      Sales: (a) Returns and refunds to customers for goods previously included as
      Gross Sales, (b) the amount of any sales tax or other excise tax imposed upon
      sales and charges (but only if such sales tax, excise tax or similar tax is
      billed to the purchaser as a separate item), 

    (c)
      returns to shippers and manufacturers, (d) exchanges of goods between Tenant’s
      stores and warehouses when the same is for a legitimate business purpose and
      not
      for the purpose of depriving Landlord of any Percentage Rent, (e) sales of
      fixtures not constituting Tenant’s stock-in-trade, (f) sales from vending
      machines located in non-sales areas and used only by employees of Tenant, (g)
      sums and credits received in the settlement of claims for loss of, or damage
      to,
      merchandise and (h) charges for alterations, gift-wrapping and deliveries if
      such services are incidental to the Permitted Use and for which Tenant
      reasonably demonstrates it makes no profit. 

     

    7.1.3.
      Credit
      Sales.
      Each
      sale on an installment basis (such as so-called lay-away sales) or otherwise
      involving the extension of credit shall be treated as a sale for the full price
      in the period in which occurs the earliest of the following: (a) Tenant first
      considers the same a sale for accounting purposes, (b) the first payment
      therefor is received or (c) delivery or performance is first commenced.


     

    7.2.
      Tenant’s
      Records.
      All
      business upon the Premises shall be operated so that duplicate, dated sales
      slips, dated invoices, register receipts or similar evidence of payment serially
      numbered, shall be issued with each sale, transaction or other event resulting
      in Gross Sales or Permitted Exclusions (“Tenant’s Receipts”). For the purpose of
      permitting verification by Landlord of any amounts due as Percentage Rent,
      Tenant shall keep and preserve at all times during the period required, at
      the
      Premises, Tenant’s Receipts, a general ledger, sales receipts and disbursements
      journals, sales records and other supporting documentation and full, complete
      and accurate non-consolidated books of account (i.e., books and records
      reflecting Tenant’s operations solely at the Premises) (collectively “Tenant’s
      Records”). Tenant’s Records shall (a) disclose in detail all information
      reasonably required to permit Landlord to verify Tenant’s Gross Sales, (b)
      conform to and be in accordance with generally accepted accounting principles
      consistently applied with respect to all operations of the business conducted
      from the Premises, (c) be maintained in the English language and (d) be kept
      and
      preserved for at least thirty-six (36) months following the end of the Lease
      Year for which the same pertain (or such longer period, if and while the same
      may need to be consulted in reference to any dispute or audit, until such
      dispute or audit has been finally resolved). 

     

    1  Failure
      of Tenant to Provide Statements.
      If
      Tenant should fail to timely provide any Monthly Sales Statement or any Annual
      Sales Statement in the manner and form required by this Lease, then, without
      limitation as to any and all rights and remedies available to Landlord in this
      Lease, at law and in equity, Landlord shall also have the right to invoice
      Tenant the sum of $250.00 per incident to cover the additional time and expense
      involved to obtain each such Monthly Sales Statement or Annual Sales Statement.
      

     

    2  INDEMNITY
      AND INSURANCE 

    


    8.1.
      Indemnification
      

     

    8.1.1.
      Indemnification
      by Tenant.
      Tenant
      hereby agrees to indemnify, defend and hold Landlord and the Landlord Parties
      harmless from and against any and all Claims for property damage, personal
      injury or any other matter arising, claimed, charged or incurred against or
      by
      Landlord or any of the Landlord Parties in connection with or relating to any
      event, condition, matter or thing which (a) occurs in, on, under or about the
      Premises from any cause except to the extent due to the gross negligence or
      willful misconduct of Landlord or any of the Landlord Parties, 

    (b)
      occurs in, on, under or about the remainder of the Center to the extent due
      to
      the gross negligence or willful misconduct of Tenant or any of the Tenant
      Parties or (c) is caused by or relates to any default, breach, violation or
      non-performance by Tenant of any provision of this Lease. 

     

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

    8.1.2.
      Indemnification
      by Landlord.
      Landlord hereby agrees to indemnify, defend and hold Tenant harmless from and
      against any and all Claims for property damage, personal injury or any other
      matter arising, claimed, charged or incurred against or by Tenant in connection
      with or relating to any event, condition, matter or thing which (a) occurs
      in,
      on, under or about the Common Area from any cause except to the extent due
      to
      the gross negligence or willful misconduct of Tenant or any of the Tenant
      Parties, (b) occurs in, on, under or about the Premises to the extent due to
      the
      gross negligence or willful misconduct of Landlord or any of the Landlord
      Parties or (c) is caused by or relates to any default, breach, violation or
      non-performance by Landlord of any provision of this Lease. 

     

    8.1.3.
      Release
      and Waiver.
      If any
      part of the Premises or the Center is damaged by fire or other cause for which
      a
      party is required to carry insurance pursuant to this Lease (“Insuring Party”),
      the other party shall not be liable to the Insuring Party (and the Insuring
      Party hereby waives all claims on behalf of itself and shall cause its insurance
      company to waive all such claims) for any loss, cost or expense arising out
      of
      or in connection with such damage. Notwithstanding anything to the contrary
      contained herein, in no event shall Landlord be liable to Tenant or any of
      the
      Tenant Parties for any damages arising out of or in connection with (a) any
      act
      or omission of any Occupant or for losses arising out of or in connection with
      theft or burglary or other acts or omissions of third parties or (b) fire,
      steam, electricity, gas, water or rain which may leak or flow from or into
      any
      part of the Premises or the Center, or from the breakage, leakage, obstruction
      or other defects of the pipes, sprinklers, wires, appliances, plumbing, HVAC
      or
      lighting fixtures. 

     

    8.2.
      Tenant’s
      Insurance.
      At all
      times during the Term, Tenant shall procure and maintain, at its sole cost
      and
      expense, the following policies of insurance: 

     

    8.2.1.
      Liability.
      Commercial general liability insurance with broad form contractual liability
      coverage and with coverage limits of not less than Three Million Dollars
      ($3,000,000.00) combined single limit, per occurrence, and Five Million Dollars
      ($5,000,000.00) general aggregate, specifically including liability insurance
      covering the consumption of alcoholic beverages by customers of Tenant, if
      the
      sale of alcoholic beverages is permitted in the Premises. This insurance shall
      be on an occurrence basis, not a claims-made basis. 

     

    8.2.2.
      Workers’
      Compensation.
      Workers’ compensation insurance in the amount required by the state in which the
      Center is located and employers’ liability insurance on an “occurrence” basis
      but, in either case, with a limit of not less than One Million Dollars
      ($1,000,000.00) each accident, One Million Dollars ($1,000,000.00) each employee
      by disease and One Million Dollars ($1,000,000.00) policy aggregate by disease,
      for the benefit of Tenant’s employees.
      

     

    
      	
            
	
              8.2.3.
                

            	
              Plate
                Glass.
                Insurance covering the full replacement cost of all plate glass on
                the
                Premises. 

            
	
              8.2.4.
                

            	
              Equipment.
                Boiler and machinery insurance on all HVAC, electrical, mechanical,
                

            


    

    


    plumbing,
      telecommunications and other equipment, systems and facilities exclusively
      serving the Premises. 

     

    8.2.5.
      Property.
      Property insurance covering any peril generally included in the classification
      ISO Causes of Loss - Special Form covering all (a) Personal Property, and


    (b)
      Improvements in an amount not less than one hundred percent (100%) of their
      full
      replacement cost. Any policy proceeds shall be used for the repair or
      replacement of the property damaged or destroyed, unless this Lease is
      terminated under the provisions of Article 23. The insurance required pursuant
      to this Section 8.2.5 shall also include business interruption or rental loss
      insurance sufficient to cover, for a period of not less than twelve (12) full
      calendar months, all Rent and other payment obligations of Tenant under this
      Lease which would be borne by or due from Tenant under this Lease if the
      Premises and Tenant’s business was fully open and operating. 

     

    8.2.6.
      Construction
      Insurance.
      Prior
      to commencing the construction or installation of any Improvements, Tenant
      shall
      provide Landlord with evidence that Tenant carries construction risk insurance
      in an amount reasonably approved by Landlord covering the construction and
      installation of such Improvements, together with such other insurance as
      Landlord may reasonably require. All Improvements shall be insured by Tenant
      under the other policies required under this Article 8 immediately upon
      completion of such work. 

     

    8.2.7.
      Automobile
      Insurance.
      Business automobile liability insurance covering all owned, non-owned and hired
      or borrowed vehicles of Tenant or any of the Tenant Parties used in connection
      with the operation of its business from the Premises, with limits of not less
      than One Million Dollars ($1,000,000.00) per occurrence combined single limit,
      insuring for bodily injury, death and property damage. 

     

    8.2.8.
      Policy
      Requirements.
      All
      policies of insurance provided for in this Section 8.2 shall (a) be issued
      by
      insurance companies that have a general policyholder’s rating of not less than
“A” and a financial rating of not less than Class VIII as rated in the most
      current available “Best’s Insurance Reports”, and that have been admitted or
      qualified to do business in the state where the Center is located by the
      insurance commission or other highest board, body or official 

     

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    responsible
      for overseeing the insurance business in such state, (b) name Landlord,
      Landlord’s Manager, all Mortgagees and such other individuals or entities as
      Landlord may from time-to-time designate, as “additional insureds”, and (c) not
      contain a deductible, nor be subject to a self-insured retention, in an amount
      greater than Five Thousand Dollars ($5,000.00). Tenant’s general liability
      policy as required in Section 8.2.1 shall contain cross-liability endorsements.
      Tenant shall provide to Landlord, at least ten (10) days prior to the Delivery
      Date and thereafter thirty (30) days prior to the expiration of any such
      policies, binders of all insurance to evidence insurance procured by Tenant
      as
      required hereunder (together with certified copies of all insurance policies).
      All binders and policies of insurance delivered to Landlord shall contain an
      agreement by the company issuing said policy to give Landlord twenty (20) days’
advance written notice of any cancellation, lapse, nonrenewal, reduction or
      other adverse change respecting such insurance. All commercial general liability
      insurance, property damage or other casualty policies shall be written as
      primary policies, not contributory with or secondary to coverage that Landlord
      may carry. If, at any time during the Term, Tenant fails to obtain and maintain
      any insurance which Tenant is required to obtain and maintain under this Lease
      or to timely provide Landlord with originals or binders of insurance, Landlord
      shall have the right (but not the obligation) to procure such insurance and
      Tenant shall pay to Landlord, promptly on demand, the costs and expenses thereof
      together with interest at the Agreed Rate from the date Landlord first made
      any
      expenditures therefor. All insurance policies required to be carried by Tenant
      hereunder shall insure Tenant’s performance of the indemnity provisions of this
      Lease, but the amount of insurance shall not limit Tenant’s liability or relieve
      Tenant of any obligation hereunder. 

     

    1  Landlord’s
      Insurance.
      Landlord shall obtain and maintain throughout the Term property insurance that
      shall include the Premises, other premises and the Center (excluding
      Improvements and Personal Property from time-to-time located on the Premises
      and
      the premises of all Occupants) insuring against risks of direct physical loss
      or
      damage written by insurance companies licensed to do business in the state
      of
      California (or such other state in which Landlord’s principal business office is
      located), together with such other insurance, and in such amounts, covering
      such
      other risks as Landlord may from time-to-time determine in its reasonable
      judgment, including, without limitation (if Landlord so elects), Commercial
      General Liability insurance and insurance against earthquake, flood and rental
      loss. Any insurance procured by Landlord under this Section 8.3 may be included
      in a policy or policies of blanket insurance covering additional items or
      locations or insureds, provided that the requirements of this Section 8.3 are
      otherwise satisfied. 

     

    2  UTILITIES
      

    


    9.1.
      Utilities.
      Throughout the Term, Tenant shall be solely responsible for obtaining, and
      shall
      promptly pay all charges for use and consumption of, all Utilities furnished
      to
      the Premises. Landlord may (at its election) supply some or all of the Utilities
      to the Premises, and, so long as Landlord continues to provide such Utilities
      to
      the Premises, Tenant agrees to purchase such Utilities from Landlord and pay
      Landlord for such Utilities, Tenant’s share thereof (based on Landlord’s
      engineer’s calculations of such share or such other reasonable measuring
      methodologies as Landlord may utilize from time-to-time). Landlord may also
      charge Tenant: (a) An Administrative Charge on any Utilities Tenant receives
      from Landlord, and (b) a pro rata share of the costs and expenses of operating,
      maintaining, repairing, installing and servicing the Utility Facilities at
      the
      Center (including any depreciation, reserves and interest costs). Tenant shall
      promptly provide Landlord, upon Landlord's written request therefor, such
      details as Landlord or its engineer may reasonably require to calculate amounts
      which are payable by Tenant pursuant to this Article 9. Landlord may also
      require Tenant, at Tenant’s sole cost, to install, maintain and replace meter(s)
      or submeter(s) (as applicable) to measure consumption of Utilities at the
      Premises. Landlord shall have the right to designate alternate third party
      provider(s) to provide any of the foregoing Utilities to the Premises. Landlord
      shall notify Tenant from time-to-time of the monthly installments payable by
      Tenant pursuant to this Article 9 and Tenant shall pay such monthly installments
      on the first day of each month (except for the first installment which shall
      be
      paid on the Rent Commencement Date). 

     

    9.2.
      Interruption
      of Services.
      Landlord shall not be in default and neither Landlord nor the Landlord Parties
      shall be liable for any damages directly or indirectly resulting from an
      interruption in any of the Utilities, the quality or quantity of the Utilities,
      the unavailability of any of the Utilities, or from cooperating with the energy
      conservation efforts of governmental agencies or utility suppliers and none
      of
      the preceding shall (a) constitute an eviction or disturbance of Tenant’s use
      and possession of the Premises, (b) constitute a termination of this Lease,
      (c)
      entitle Tenant to an abatement of any Rent or 

    (d)
      relieve Tenant from performing any of its obligations under this Lease.


     

    10.
      USE AND OPERATION 

     

    10.1.
      Permitted
      Use.
      Tenant
      shall use the Premises (a) only for the Permitted Use and for no other use
      or
      purpose and (b) solely and specifically under the Trade Name and under no other
      trade name and (c) to store or stock only the merchandise which Tenant is
      permitted to sell at retail pursuant to this Lease and no other merchandise.
      Nothing herein shall be deemed to grant to Tenant an exclusive or preferential
      right to the Permitted Use in the Center. 

     

    10.2.
      Prohibited
      and Restricted Uses.
      Tenant
      shall do none of the following: (a) Permit anything to be done in or about
      the
      Premises nor bring or keep anything therein which will in any way increase
      the
      existing rate of, or affect any, fire or other insurance upon the Premises
      or
      the Center or cause a cancellation of any insurance policy covering the Premises
      or the Center or any part thereof or any of 

     

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    its
      contents; (b) permit anything to be done in or about the Premises or bring
      or
      keep anything therein that may cause any deleterious or harmful substance
      including, without limitation, mold or fungus, to exist in, on, under or about
      the Premises or elsewhere in the Center, (c) obstruct or interfere with the
      rights of Occupants or injure or annoy them; (d) use any loudspeakers,
      phonographs, televisions or other devices of similar nature in such manner
      as to
      be heard or viewed outside of the Premises; (e) emit any noise, odors, fumes
      or
      smoke; (f) use the Premises for any improper, unethical, immoral, unlawful,
      pornographic or other similarly objectionable or offensive purpose; (g) conduct
      or permit in the Premises any fire, bankruptcy, auction, “closeout”, “going out
      of business” or similar sale; (h) use any part of the Center (other than the
      inside of the Premises) for the sale, display or storage of any merchandise
      or
      for the solicitation of customers or for any other business, occupation or
      undertaking; (i) install or use upon the Premises or the Center any coin- or
      token-operated vending machine or other coin- or token-operated device for
      the
      sale of any goods, wares, merchandise, food, beverages and/or services
      (including, but not limited to, pay-telephones within the sales area of the
      Premises, pay-lockers, pay-toilets, scales, amusement devices, slot machines
      and
      other gambling devices and machines for the sale of beverages, foods, candy,
      cigarettes or other commodities); (j) install or use an automated teller machine
      or other cash or credit dispensing machines; (k) use any portion of the Premises
      as living quarters, sleeping quarters or for lodging purposes; or (l) keep
      or
      place any Personal Property or other obstruction in any part of the Common
      Area.
      The Premises shall be kept in a clean condition, and all health and police
      regulations shall, in all respects and at all times, be fully complied with
      by
      Tenant. Tenant shall not commit or allow to be committed any waste upon the
      Premises. 

     

    10.3.
      Days
      and Hours of Operation.
      Tenant
      shall, continuously throughout the Term during Center Hours, operate for
      business at the Premises the Permitted Use, keep in stock a full line of
      merchandise and maintain an adequate sales force so as to maximize Gross Sales
      and keep display windows, exterior signs and exterior advertising adequately
      illuminated and in first-class condition. Tenant acknowledges that its failure
      to comply with this Section 10.3 will cause Landlord to suffer damages which
      will be difficult to ascertain and that the following sum payable by Tenant
      under this Section 10.3 represents a fair estimate of such damages. Therefore,
      if Tenant fails to comply with the provisions of this Section 10.3, then in
      addition to Landlord’s other remedies under this Lease, Landlord shall have the
      right to collect from Tenant, in addition to the other Rent, a sum equal to
      twice the Fixed Minimum Rent (prorated on a daily basis) for each such full
      or
      partial day Tenant fails to comply with the provisions of this Section 10.3.
      

     

    1  Radius.
      Neither
      Tenant nor any person, partnership, corporation or other entity in which Tenant
      has a financial interest or who or which has a financial interest in Tenant
      (other than stock of Tenant if such stock is publically traded) shall, at any
      time after the Effective Date, directly or indirectly, either individually,
      as a
      partner, stockholder (other than stock held in a public company) or otherwise,
      own, operate or otherwise become financially interested in any business
      (including departments and concessions in other stores) similar to or competing
      with the business operating in the Premises (“Competing Interest”) within the
      Radius. This Section 10.4 shall not apply to any Competing Interest in a
      business it is operating within the Radius on the Effective Date so long as
      it
      continually operates (except for temporary closings for remodeling, a casualty
      or condemnation) and continues to operate in the same manner. If Tenant violates
      the provisions of this Section 10.4, then Landlord, in its sole discretion
      and
      without limiting Landlord’s remedies under this Lease, at law or in equity, may
      (a) declare such violation to be an incurable default under this Lease and
      terminate this Lease and/or (b) include the gross sales made from any such
      business(es) within the Radius in the Gross Sales under this Lease for so long
      as there continues to be a violation of this Section 10.4. If Landlord elects
      to
      include the gross sales from such other business in the Gross Sales pursuant
      to
      (b) preceding, then all gross sales and Tenant’s records from such business
      shall be subject to the provisions of Article 7 and Landlord’s audit rights
      under Section 27.3. 

    2  SIGNS
      

    


    11.1.
      Tenant’s
      Signs.
      Tenant
      shall, at its sole cost and expense, obtain all necessary licenses and permits
      for, and purchase, install, maintain, operate, repair and replace, as necessary,
      all of Tenant’s signs (including the Storefront Sign). All Tenant’s signs
      (including the Storefront Sign) shall 

    (a)
      comply with all Governmental Regulations and the Rules and shall have received
      the prior written approval of Landlord and, if required, of governmental
      authorities and (b) comply with the provisions of this Lease (including the
      Tenant Package). The removal of all Tenant’s signs (including the Storefront
      Sign) and all work associated with such removal, including without limitation
      the cost of restoring the storefront due to such removal prior to the Expiry
      Date or date of earlier termination of this Lease, shall be undertaken by,
      and
      at the sole cost and expense of, Tenant. All Tenant’s signs (including the
      Storefront Sign) shall at all times be maintained in working, first-class
      condition. 

     

    12.
      REPAIRS, MAINTENANCE, IMPROVEMENTS AND COMPLIANCE WITH LAW


     

    12.1.
      Repairs
      and Maintenance 

     

    12.1.1.
      Landlord’s
      Obligations.
      Landlord shall maintain in good order, condition and repair the exterior
      structural walls, load bearing walls, the outside face of the exterior walls,
      foundations, exterior roofs and all Utility Facilities serving the Premises
      on a
      non-exclusive basis (except to the extent that the applicable utility provider
      is responsible for the repair and maintenance of any such Utility Facilities).
      Landlord shall be under no obligation to maintain, repair or replace any portion
      of the Premises (except as otherwise expressly set forth in this Section
      12.1.1), nor shall Landlord be liable for any failure to make any such repairs
      or to perform 

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    any
      maintenance required of Landlord hereunder unless Tenant has notified Landlord,
      in writing, of the need of such repairs or maintenance, and such failure shall
      then persist for an unreasonable period of time after such written notice.
      

     

    12.1.2.
      Tenant’s
      Obligations.
      Tenant
      shall at all times during the Term, and at its sole cost and expense, maintain,
      keep and repair the Premises in good order, condition and repair. Such
      obligations of Tenant shall include, without limitation, the maintenance, repair
      and replacement of interior surfaces of exterior and demising walls, exterior
      doors and entrances, locks and closing devices, all plate glass, frames,
      moldings and trim of all doors and windows, all partitions, door surfaces,
      floor
      covering, fixtures, equipment and appurtenances thereof, lighting, plumbing
      fixtures (including any grease traps, grease lines and piping exclusively
      serving the Premises), toilet facilities and fixtures, windows, window sashes,
      showcases, storefronts, security grilles and similar enclosures, all of Tenant’s
      signs (including the Storefront Sign) and any HVAC exclusively serving the
      Premises (provided that maintenance work regarding parts of the HVAC or plumbing
      systems which protrude outside of the Premises shall be completed by a
      contractor selected by Landlord, as a Reimbursed Cost). Tenant shall promptly,
      at its sole cost and expense, comply, and cause the Premises to comply, with
      all
      Governmental Regulations affecting the Premises and Tenant’s activities in the
      Center. Notwithstanding anything to the contrary contained in this Lease
      (including Section 12.1.1), all alterations, demolitions and improvements
      (whether structural or non-structural, interior or exterior) required by any
      Governmental Regulations arising from Tenant’s use or occupancy of the Premises,
      Tenant’s conduct of business upon the Premises, Tenant’s obligations as an
      employer and/or the construction, installation or placement of any Improvements
      or Personal Property upon the Premises shall be undertaken by Tenant, at
      Tenant’s sole cost and expense, if upon the Premises, and by Landlord as a
      Reimbursed Cost, if elsewhere in the Center. 

     

    12.2.
      Refurbishment.
      If the
      Term is longer than five (5) years, Landlord may, upon written notice
      (“Refurbishment Notice”) to Tenant given at any time following the fourth
      (4th)
      anniversary of the Rent Commencement Date, require Tenant, at Tenant’s sole cost
      and expense, to refurbish the Premises as necessary to maintain the Premises
      in
      a like-new, first-class condition (“Refurbishment”) (provided, however, in no
      event shall Tenant be required to perform more than one Refurbishment in any
      five (5) consecutive year period). The extent of such Refurbishment shall be
      specified by Landlord in the Refurbishment Notice and may include, without
      limitation, new floor coverings, new wall coverings, repainting the Premises
      and
      installing new trade fixtures. The Refurbishment shall be performed by Tenant
      in
      accordance with the provisions of this Section 12.2 and shall be completed
      within six (6) months following the date Landlord delivers the Refurbishment
      Notice to Tenant. Tenant acknowledges that its failure to comply with this
      Section 12.2 will cause Landlord to suffer damages which will be difficult
      to
      ascertain and that the following sum payable by Tenant under this Section 12.2
      represents a fair estimate of such damages. Therefore, if Tenant fails to
      complete the Refurbishment within such six (6)-month period, then in addition
      to
      Landlord’s other remedies under this Lease, Landlord shall have the right to
      collect from Tenant, in addition to the other Rent, a sum equal to one-fourth
      (1/4th)
      Fixed
      Minimum Rent (prorated on a daily basis) for each full or partial day from
      the
      expiration of such six (6)-month period until the Refurbishment is complete.
      

     

    12.3.
      Improvements.
      Tenant
      shall make no Improvements without Landlord’s express, prior written consent in
      each instance. All Improvements shall be performed by Tenant (at its sole cost
      and expense) in such a manner as to not impede access to the premises of any
      other Occupant or of any part of the Common Area, and in a good and workman-like
      manner, with diligence, using materials of at least the same specifications,
      grade and quality as required pursuant to the Tenant Package. All Improvements
      shall be (a) performed under the supervision of a licensed architect and/or
      licensed structural engineer retained and compensated by Tenant, as shall be
      appropriate for such work, (b) in strict conformance with detailed drawings
      which have received the prior, written approval of Landlord, and (c) in strict
      conformance with Exhibit
      C,
      the
      Tenant Package and with all Governmental Regulations. Upon Landlord’s receipt of
      Tenant’s proposed plans and the Plan Review Fee in connection with any
      Improvements, Landlord shall review and, in writing to Tenant, either approve,
      or disapprove with reasonable detail, said plans. Prior to commencing any
      Improvements, Tenant shall deliver to Landlord a copy of the building permit
      with respect thereto, if the same is required by any Governmental Regulations
      in
      connection with any such Improvements. 

     

    12.4.
      Liens.
      Tenant
      shall keep the Premises, the Building and the Center free from any liens and
      other claims arising out of work performed, materials furnished, or obligations
      incurred by or on behalf of Tenant. Tenant shall give Landlord at least ten
      (10)
      business days’ prior written notice of the expected date of commencement of any
      work to be performed by or on behalf of Tenant. Landlord shall have the right
      at
      all times to keep posted on the Premises any notices permitted or required
      by
      law, or which Landlord shall deem proper, for the protection of Landlord, the
      Premises, the Center and any other party having any interest therein, against
      mechanics’ and materialmen’s liens. If, as a result of any work performed or
      materials furnished or obligations incurred for the benefit of the Premises,
      any
      claim of lien is filed against the Premises or any part of the Center or any
      similar action affecting title to such property is commenced, the party
      receiving notice of such lien or action shall immediately give the other party
      written notice thereof. If Tenant fails, within twenty (20) days following
      the
      imposition of any lien or the filing of a lawsuit seeking foreclosure of such
      lien, to cause such lien to be released of record by payment or by recording
      of
      a proper statutory discharge of lien bond, Landlord shall have, in addition
      to
      all other remedies provided herein and at law, the right (but not the
      obligation) to cause the same to be released by such means as it shall deem
      proper, including payment of the claim giving rise to such lien. All such sums
      expended by Landlord and all costs and expenses incurred by Landlord in
      connection therewith (including reasonable attorneys’ fees), together with
      interest at the Agreed Rate 

     

    Arrowhead
      Towne Center - As Seen On TV Retail/Mall/Fixed Costs
      #217342v2<iManage>:04.27.07.1410 Vers 3.0 : 201924_1 : 06.01.06


    from
      the
      date expenditure is first made by Landlord, shall be payable to Landlord by
      Tenant within ten 

    (10)
      days
      after Landlord’s written demand to Tenant. 

     

    13.
      SURRENDER OF PREMISES 

     

    13.1.
      Surrender.
      Prior
      to the Expiry Date or date of earlier termination of this Lease, Tenant shall
      perform all of the following (collectively, “Surrender Obligations”) at its sole
      cost and expense: 

    (a)
      Remove all of its Personal Property, exclusive of Attached Fixtures, from the
      Premises and the Center, (b) restore the Premises to the condition in which
      the
      Premises existed prior to installing such Personal Property to the extent the
      Premises were altered or in any manner modified to accommodate the same, and
      (c)
      repair all damage caused by or in connection with Tenant’s performance of the
      Surrender Obligations (including without limitation thereto, repairing the
      floor
      and patching and painting the walls if damaged beyond ordinary wear and tear,
      and leaving the Premises in a clean and rentable condition). Upon the Expiry
      Date or date of earlier termination of this Lease, Tenant shall surrender to
      Landlord the Premises, broom-clean and in good condition, except for ordinary
      wear and tear and destruction to the Premises pursuant to Article 23, to the
      extent Tenant is not required to restore the same pursuant to Article 23. If
      Tenant’s performance of the Surrender Obligations would damage or otherwise
      affect the Building structure, Tenant shall give Landlord prior written notice
      thereof and Landlord may elect to perform selected Surrender Obligations as
      a
      Reimbursed Cost. 

     

    13.2.
      Improvements
      and Personal Property.
      Landlord may dispose of any Personal Property remaining on the Premises after
      the Expiry Date or date of earlier termination of this Lease in accordance
      with
      applicable statutes relating to the disposition of abandoned property. If no
      such statutes exist, Landlord may retain or dispose of such Personal Property
      and title to any such Personal Property which Landlord elects to retain shall
      vest in Landlord. Tenant waives all claims against Landlord for any damage
      or
      loss to Tenant arising out of Landlord’s retention or disposition of any such
      Personal Property as provided for in this Article 13 and shall be liable to
      Landlord for Landlord’s costs of removing, storing, and disposing of any such
      Personal Property which Tenant fails to remove from the Premises prior to the
      Expiry Date or date of earlier termination of this Lease, as well as all costs
      of restoring the Premises required as a result of removing such Personal
      Property. All Improvements (including any Attached Fixtures) shall become the
      property of Landlord upon the Expiry Date or date of earlier termination of
      this
      Lease. 

     

    13.3.
      Holding
      Over.
      If
      Tenant holds over after the Expiry Date or date of earlier termination of this
      Lease without the express written approval by Landlord, (a) such tenancy shall
      be at sufferance only and not a renewal of this Lease or an extension of the
      Term, (b) monthly installments of Fixed Minimum Rent, Percentage Rent and
      Additional Rent shall be payable in an amount equal to two (2) times the Fixed
      Minimum Rent, Percentage Rent and Additional Rent in effect as of the last
      full
      calendar month of the Term (not taking into consideration any Rent abatement
      to
      which Tenant might have been entitled for such month), and each shall be due
      and
      payable at the times specified therefor in this Lease and (c) such tenancy
      shall
      be subject to every other term, covenant and agreement contained herein other
      than any provisions for rent concessions, Landlord’s Work, or optional rights of
      Tenant requiring Tenant to exercise the same by written notice (such as any
      options to extend the Term). Nothing contained in this Section 13.3 shall be
      construed as consent by Landlord to any holding over by Tenant (or limit any
      of
      Landlord’s rights and remedies incident to a holding over under this Lease, at
      law or in equity), and nothing in this Section 13.3 shall affect Landlord’s
      right to require Tenant to perform all obligations under this Article 13 and
      surrender possession of the Premises to Landlord as provided in this Lease
      upon
      the Expiry Date or date of earlier termination of this Lease or at any time
      subsequent thereto as Landlord shall specify. 

     

    1  No
      Merger on Surrender of Lease.
      The
      voluntary or other surrender of this Lease by Tenant, or a mutual termination
      thereof, shall not work as a merger. Such surrender or termination shall, at
      the
      option of Landlord, terminate all or any existing subleases or subtenancies,
      or
      may, at the option of Landlord, operate as an assignment to it of any or all
      such subleases or subtenancies. The delivery of keys to the Premises to Landlord
      or its agent and/or the taking of physical possession of the Premises by
      Landlord shall not constitute a surrender or termination of this Lease absent
      Landlord’s written agreement that this Lease has been so surrendered or
      terminated. 

    2  ASSIGNMENT
      AND SUBLETTING 

    


    14.1.
      Prohibited
      Transactions.
      Tenant
      is prohibited from (a) Assigning this Lease or Subletting the Premises to a
      governmental agency or instrumentality thereof and/or (b) mortgaging, pledging
      or encumbering this Lease or Tenant’s interest in the Premises to any entity
      and/or (c) making any Involuntary Assignment. 

     

    14.2.
      Landlord’s
      Consent Required.
      Tenant
      shall not effect a Transfer, by operation of law or otherwise, without the
      prior
      written consent of Landlord in each instance, which consent shall not be
      unreasonably withheld (subject to the provisions of this Article 14). Any
      attempt by Tenant to effect a Transfer without such consent of Landlord shall
      be
      voidable by Landlord and, at Landlord’s election, shall constitute an incurable
      default under this Lease. 

     

    14.3.
      Tenant’s
      Application.
      If
      Tenant desires to effect a Transfer, Tenant shall submit in writing to Landlord
      at least forty-five (45) days prior to the proposed effective date of the
      Transfer a notice of intent to Transfer (“Request to Transfer”). Each Request to
      Transfer must contain, or be accompanied with, each of the following: (a) The
      name of the proposed Transferee and, if not a natural person, 

     

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    details
      of the legal and beneficial ownership structure of Transferee, (b) a statement
      of the nature of the Transfer (e.g., a sublease, assignment or concession
      agreement) and of any related transactions (e.g., details of any sale of the
      business, details of a merger and copies of operative documents involved in
      the
      related transactions), (c) a detailed description of the proposed Transferee’s
      business to be conducted upon the Premises, (d) details of the terms and
      provisions of the proposed Transfer and the Proposed Transfer Date (which shall
      be no later than ninety [90] days after Landlord’s receipt of the Request to
      Transfer), (e) a current, audited financial statement for the proposed
      Transferee, 

      (f)
      statements of income or profit and loss of the proposed Transferee for a period
      of no less than three 

      (3)
      years
      prior to the date Landlord receives the Request to Transfer, (g) reasonable,
      written history and details of the proposed Transferee’s previous business
      experience, (h) if the Transfer is a Subletting, a conformed copy of the final,
      proposed Subletting instrument(s), together with a statement by Tenant and
      Transferee that such instrument(s) is/are true copies of instrument(s) which
      the
      parties intend to execute and (i) the Review Fee. If the foregoing information
      is not sufficient, in Landlord’s judgment, for Landlord to determine which of
      Landlord’s rights to exercise under this Article 14, Landlord shall promptly
      request, and Tenant shall promptly furnish to Landlord, other and/or additional
      pertinent and reasonable information concerning the proposed Transfer and the
      proposed Transferee as Landlord shall require to make such determination.


    


    14.4.
      Standards
      for Approval and Disapproval.
      In
      determining whether to grant or withhold its consent to a proposed Transfer,
      Landlord may consider any reasonable factor. Without limiting the conditions
      that may be construed as a reasonable factor, it is deemed reasonable that
      Tenant demonstrate to Landlord’s reasonable satisfaction each of the following:
      (a) The proposed Transferee has sufficient financial worth to fully and timely
      discharge all of the then remaining obligations of Tenant under this Lease,
      (b)
      the proposed Transferee is of sound business reputation, (c) the use of the
      Premises by the proposed Transferee will be the Permitted Use, (d) the proposed
      Transferee is likely to maintain the same levels and increases in Percentage
      Rent as Tenant is anticipated to generate during the remaining Term of this
      Lease, (e) the proposed Transferee has sufficient retail experience to
      successfully undertake its business at the Premises, (f) the proposed Transferee
      does not occupy premises in the Center, (g) the proposed Transferee has not
      delivered a letter of intent to Landlord or Landlord’s agent to lease space in
      the Center and (h) the proposed Transferee is not actively negotiating with
      Landlord or Landlord’s agent to lease space in the Center. Furthermore, if
      Tenant is then in default of any obligation of Tenant under this Lease, it
      shall
      be reasonable for Landlord to elect, in its sole discretion, to deny its consent
      to such proposed Transfer so long as such default exists. Notwithstanding
      anything to the contrary contained in this Lease, if Tenant or any proposed
      Transferee claims that Landlord has unreasonably withheld or delayed its consent
      under this Article 14 or otherwise has breached or acted unreasonably under
      this
      Article 14, their sole remedies shall be a declaratory judgment and an
      injunction for the relief sought without any monetary damages, and Tenant hereby
      waives all other remedies, including, without limitation, any right at law
      or in
      equity to terminate this Lease, on its own behalf and, to the extent permitted
      under all applicable laws, on behalf of the proposed Transferee. 

     

    14.5.
      Landlord’s
      Notification to Tenant 

     

    14.5.1.
      Notification
      to Tenant.
      Within
      thirty (30) days after Landlord’s receipt of the Request to Transfer and all of
      the information required pursuant to Section 14.3, Landlord shall notify Tenant
      in writing that Landlord has elected to (a) terminate this Lease pursuant to
      Section 14.5.2 (“Notice of Transfer Termination”), or (b) consent to such
      proposed Transfer (subject to the provisions hereof), or (c) withhold consent
      to
      such proposed Transfer. 

     

    14.5.2.
      Termination.
      If
      Landlord delivers the Notice of Transfer Termination to Tenant, then (a) this
      Lease shall terminate upon the Proposed Transfer Date and (b) upon the Proposed
      Transfer Date, provided Tenant has performed all Surrender Obligations, Tenant
      shall be released from all further obligations accruing under this Lease from
      and after the Proposed Transfer Date. Landlord may lease the Premises, or any
      portion thereof, to the prospective Transferee without liability to Tenant.
      

     

    14.5.3.
      Consent.
      If
      Landlord consents to a proposed Transfer, Landlord may, in its sole discretion
      and notwithstanding any contrary provision contained in this Lease, make such
      consent contingent upon increasing the Fixed Minimum Rent (and increases
      thereto, if any, as specified in this Lease) effective as of the Proposed
      Transfer Date by an amount equal to the highest annual Percentage Rent payable
      by Tenant during the Term. 

     

    14.6.
      Required
      Subletting Instrument and Assignment Instrument Provisions.
      Each
      and every Transfer shall be documented by an Assignment instrument or a
      Subletting instrument, as the case may be, and a true copy of the same executed
      by the parties thereto shall be delivered to Landlord prior to the Proposed
      Transfer Date. Each and every Assignment instrument and Subletting instrument
      shall contain such terms and conditions as are described in the Request to
      Transfer and be expressly subject and subordinate to each and every provision
      contained in this Lease. Each Transferee shall expressly assume in writing
      for
      the benefit of Landlord the obligations of Tenant under this Lease and shall
      be
      liable jointly and severally with Tenant for the payment of the Rent and the
      performance of all the terms, covenants, conditions and agreements herein
      contained on Tenant’s part to be performed for the Term. If Landlord approves
      the proposed Transfer, Landlord shall prepare and deliver to Tenant, for
      execution by Tenant and the proposed Transferee, counterparts of Landlord’s
      reasonable and customary assignment instrument, in the case of an Assignment,
      or
      consent instrument, in the case of a Subletting, and Tenant shall have thirty
      (30) days to cause the same to be executed, without modification,
      by both Tenant and the proposed Transferee and delivered to Landlord, together
      with all required attachments thereto. 

     

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

     

    14.7.
      Tenant’s
      Duty to Subtenant.
      Landlord shall have no obligation whatsoever to perform any duty to or respond
      to any request from any Subtenant. Tenant shall have the obligation of
      administering the terms of all Subletting instrument(s). 

     

    14.8.
      No
      Release of Tenant.
      No
      Transfer shall relieve Tenant of any obligation to be performed by Tenant under
      this Lease, whether occurring before or after such consent or Transfer,
      including Tenant’s obligation to obtain Landlord’s express prior written consent
      to any other Transfer (which right of consent shall not negate or waive any
      provision contained in this Article 14). 

     

    14.9.
      Assignment
      of Rents and Attornment.
      Tenant
      immediately and irrevocably assigns to Landlord, as security for Tenant’s
      obligations under this Lease, all rent from any Subletting of all or any part
      of
      the Premises, and Landlord, as assignee for Tenant for purposes hereof or a
      receiver for Tenant appointed on Landlord’s application, may collect such rents
      and apply the same toward Tenant’s obligations under this Lease; except that,
      until the occurrence of an act of default by Tenant, Tenant shall have the
      right
      and license to collect such rents. In the event of termination, re-entry, or
      dispossession of Tenant by Landlord under this Lease, Landlord may, at its
      sole
      discretion by express written notice to Tenant or the Transferee or both, take
      over all of the right, title and interest of Tenant as sublessor under any
      Subletting instrument, and such Transferee shall, at Landlord’s sole discretion,
      attorn to Landlord, except that Landlord shall not be (a) liable for any
      previous act or omission of Tenant under the Subletting instrument, (b) subject
      to any offset that theretofore accrued to the Transferee against Tenant, (c)
      bound by any previous modification of the Subletting instrument not expressly
      consented to in writing by Landlord and (d) bound by any previous prepayment
      of
      Rent or Security Deposit which has not been expressly delivered by Tenant to
      Landlord. 

     

    14.10.
      Additional
      Consideration Upon a Transfer.
      In the
      event of an Assignment, one-half (1/2) of any consideration paid to Tenant
      by
      any Transferee for such Assignment shall be paid to Landlord. In the event
      of a
      Subletting, each month one-half (1/2) of any consideration paid to Tenant by
      any
      Transferee during such month for any portion of Tenant’s interest in this Lease
      shall be paid to Landlord to the extent the full amount of such consideration
      (i.e., before being divided between Landlord and Tenant) exceeds the percentage
      (equal to the percentage of the Floor Area of the Premises being Sublet) of
      Tenant’s Rent obligations hereunder during such month. 

     

    14.11.
      Review
      Fee.
      Simultaneously with the delivery to Landlord of the Request to Transfer Tenant
      shall pay to Landlord a fee in the amount of One Thousand Dollars ($1,000.00)
      (“Review Fee”) for Landlord’s review of each such transaction. 

     

    1  Corporate
      and Partnership Transfers.
      If
      Tenant is a privately-held corporation, or is an unincorporated association,
      limited liability company or partnership, the cumulative or aggregate transfer,
      assignment or hypothecation of twenty-five percent (25%) or more of the total
      stock, or the legal or beneficial interest, in such corporation, association,
      company or partnership, whether in a single transaction or a series of related
      or unrelated transactions, and whether on a direct or indirect basis, shall
      be
      deemed a Transfer. 

    2  TRANSFER
      OF LANDLORD’S INTEREST 

    


    1  Transfer
      of Landlord’s Interest.
      Landlord shall have the right to sell or transfer its ownership of all or any
      part of the Center to one or more third parties. If Landlord sells or transfers
      its interest in the Premises (other than a transfer for security purposes),
      (a)
      Landlord shall be released from all obligations and liabilities accruing
      thereafter under this Lease and Landlord’s successor shall be deemed to have
      assumed Landlord’s obligations thereafter accruing under this Lease and (b)
      Tenant agrees to attorn to the purchaser or assignee. 

    2  COMMON
      AREA 

    


    1  Common
      Area.
      During
      the Term, Tenant and the Tenant Parties shall have the non-exclusive right
      in
      common with Landlord and all others to whom Landlord has or shall give the
      same
      or similar rights, to use the Common Area for its intended purposes subject
      to
      (a) the right of Landlord, Occupants and their respective invitees, customers,
      agents, employees and independent contractors to use the Common Area, (b) any
      Superior Agreements, and (c) each provision of this Lease. Landlord shall,
      or
      shall cause others to, operate, repair, equip and maintain the Common Area
      in a
      manner deemed by Landlord in its business judgment to be reasonable and
      appropriate. The Common Area shall be subject to the exclusive control and
      management of Landlord. Landlord may, from time-to-time, impose parking charges
      at the Center. 

    2  LANDLORD’S
      RESERVATION OF RIGHTS 

    


    17.1.
      Reservation
      of Rights.
      Landlord reserves the right, at any time, and from time-to-time to:


    (a)
      expand, reduce, remove, demolish, change, renovate or construct any existing
      or
      new improvements at the Center, and (b) expand, reduce or otherwise change
      the
      size, configuration or boundaries of the Center. Landlord shall have complete
      and exclusive control of the design, structure, construction, materials, colors,
      architectural elements and aesthetics of all improvements and Common Area at
      the
      Center, as well as all activities undertaken by Landlord and other Occupants
      in
      connection therewith. 

     

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    This
      Lease does not grant any rights to light or air over or about the Center.
      Landlord reserves exclusively to itself the use of all of the following: (i)
      Roofs and exterior walls, (ii) telephone, electrical, utility, communication
      and
      janitorial closets, (iii) equipment rooms, building risers or similar areas
      that
      are used by Landlord for the provision of services, (iv) portions of the
      Premises for the repair, maintenance and replacement of machinery, pipes,
      conduits, utility lines and the like serving other Occupants and/or the Center
      in a manner and in locations which do not unreasonably interfere with Tenant’s
      use of the Premises, and (v) the areas beneath, adjacent to and above the
      Premises (including the plenum within the Premises). 

     

    17.2.
      Changes
      to the Center.
      Landlord shall have the right and privilege at all times of determining the
      nature and extent of the Common Area and the Center and of making such changes,
      rearrangements, additions and reductions therein from time-to-time as Landlord
      deems desirable, including, without limitation, the location, relocation,
      enlargement, reduction, addition and/or elimination of driveways, malls,
      entrances and exits, automobile parking spaces, employee and customer parking
      areas, buildings and other structures, the direction and flow of traffic,
      establishment of protected areas, landscaped areas and any and all other
      facilities of the Common Area, the right at any time to locate on the Common
      Area permanent and/or temporary RMUs, and/or other building(s) and/or other
      improvements of any type and the right at any time to enclose or un-enclose
      any
      portions of the Common Area and/or Mall. Landlord reserves the right to utilize
      portions of the Common Area, from time-to-time, for shows, rides,
      entertainments, displays, advertising, educational purposes, demonstrations,
      civic and charitable functions and other uses which, in Landlord’s judgment, may
      attract the public to the Center or create goodwill, community interest or
      other
      beneficial interest with respect to the Center. Landlord shall have the right
      to
      convert Common Area to leaseable space and to convert leasable space to Common
      Area, from time-to-time. Landlord shall have the right (a) to close, if
      necessary, all or any portion of the Common Area to such extent as may be
      reasonably necessary to prevent a dedication thereof or the accrual of any
      rights of any person or of the public therein, (b) to close temporarily all
      or
      any portion of the Common Area to discourage non-customer use, (c) to use
      portions of the Common Area while engaged in making additional improvements,
      repairs or alterations to the Center, (d) to transfer, in whole or in part,
      any
      of Landlord’s rights and/or obligations under Article 16 to any Occupant or to
      any other party as Landlord may from time-to-time determine and (e) to do and
      perform such other acts in, to and with respect to, the Common Area as Landlord
      shall determine, in its business judgment, to be appropriate for the Center.
      Notwithstanding any contrary provision contained in this Lease, services and
      facilities may be discontinued, and access to the Premises and the Center
      restricted, in whole or in part, during such times as the Center is not open
      for
      business, and any other times as are necessary for temporary purposes such
      as
      repairs, alterations, strikes and other reasonable purposes. Landlord has no
      obligation to, and has made no representations that it shall, repair, alter,
      remodel, improve, renovate, decorate, demolish and/or add improvements to the
      Building or the Center, or any part thereof, and no representations respecting
      the condition of the Building or the Center have been made by Landlord to
      Tenant. 

     

    17.3.
      Right
      to Lease.
      Landlord reserves the absolute right to effect such other tenancies in the
      Center as Landlord, in the exercise of its sole business judgment, shall
      determine to best promote the interests of the Center. Tenant does not rely
      on
      the fact, nor does Landlord represent, that any specific occupant or type or
      number of occupants shall, at any time, occupy any space in the Center. Landlord
      shall have the full right to lease space in the Center to any person or entity
      and for any purpose Landlord shall deem appropriate, including retail, office,
      non-retail, residential, mixed used and commercial purposes. 

     

    17.4.
      Entry
      by Landlord.
      Landlord and its representatives (including contractors) shall have the right
      at
      all reasonable times upon reasonable prior notice to Tenant (and at all times
      without notice in the event of an emergency), to enter the Premises (a) for
      any
      purpose permitted by law, (b) to ascertain if the Premises are in good order,
      condition and repair, (c) to post notices of nonresponsibility or other notices
      which Landlord may deem necessary for its protection, (d) to show the Premises
      to prospective purchasers, mortgagees or ground or underlying lessors (each
      of
      which may then also enter the Premises), (e) to perform any obligation required
      of, or right permitted to, Landlord under this Lease, 

    (f)
      to
      take possession of the Premises due to an event of default in the manner
      provided for in this Lease or (g) to perform environmental assessments. During
      the twelve (12) months prior to the Expiry Date, Landlord may show the Premises
      to brokers, prospective tenants and their representatives. Landlord shall use
      good faith efforts during any entry upon the Premises pursuant to this Section
      17.4 not to unreasonably interfere with Tenant’s conduct of business. No
      exercise by Landlord of any rights in this Section 17.4 shall entitle Tenant
      to
      any damage for any injury or inconvenience occasioned thereby nor to any
      abatement of Rent. 

     

    17.5.
      Relocation.
      If, in
      connection with Landlord*s
      expansion, reduction, removal, renovation or construction of new or existing
      improvements or in connection with Landlord’s re-merchandising plans, Landlord
      determines that it is necessary or advisable that Tenant vacate the Premises
      or
      that the Premises be altered, Landlord may, by written notice delivered to
      Tenant (“Relocation Notice”), require that Tenant surrender possession of the
      Premises, provided and on condition that (a) Landlord and Tenant shall, for
      a
      period of thirty (30) days following delivery of the Relocation Notice,
      negotiate in good faith to enter into a lease for substitute premises at the
      Center on substantially the same terms and conditions as those contained in
      this
      Lease (“Substitute Lease”) to the extent applicable, for the balance of the
      remaining Term, or (b) if, despite such good faith negotiations, the parties
      are
      unable to enter into the Substitute Lease on or before the thirtieth
      (30th)
      day
      following the delivery of the Relocation Notice, Landlord may elect, by written
      notice delivered to Tenant, to terminate this Lease. If Landlord terminates
      this
      Lease, the termination shall be effective on the date specified in Landlord’s


     

     

    
      
        
        

      

      
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    written
      notice (which shall be at least fifteen [15] days after the sending of such
      notice) and upon the date Tenant vacates the Premises and performs all the
      Surrender Obligations, Landlord shall pay to Tenant the Unamortized Amount.
      The
      relocation of the Premises in accordance with (a) herein or the payment of
      the
      consideration in accordance with (b) herein shall be Tenant*s
      sole
      recourse and right in the event Tenant is required to surrender possession
      of
      the Premises as provided in this Section 17.5. 

     

    18.
      NOTICES 

     

    18.1.
      Notices.
      Any
      notice, demand or communication required or permitted to be given by one party
      to the other shall be in writing and addressed to Landlord’s Address for Notices
      or Tenant’s Address for Notices, as the case may be, or to such other
      address(es) and/or to such other parties as one party may from time-to-time
      reasonably designate in writing to the other party, and shall be 

    (a)
      personally served, (b) deposited in the United States mail, duly registered
      or
      certified with postage fully prepaid thereon or (c) delivered by an overnight
      courier service that confirms delivery. Either party may, by written notice
      similarly given, designate a different address for notice purposes. Notice
      shall
      be effective upon receipt or refusal to receive, in the event of personal
      service; or upon receipt or refusal to receive (but in no event more than three
      [3] days after the date first mailed in the manner herein required), in the
      event of depositing notice in the United States mails; or upon receipt or
      refusal to receive, in the event of delivery by overnight courier service.
      

     

    19.
      DEFAULTS BY TENANT 

     

    19.1.
      Defaults.
      The
      occurrence of any one or more of the following events shall constitute a default
      by Tenant under this Lease: 

     

    19.1.1.
      Monetary.
      The
      failure by Tenant to make any payment of Rent or of any other sum required
      to be
      made by Tenant when due (however Tenant shall have up to three [3] days after
      written notice from Landlord to cure such default). 

     

    19.1.2.
      Failure
      to Conduct Business.
      If
      Tenant should fail at any time during the Term, to keep the Premises open for
      business fully fixtured, staffed or stocked on the days and hours required
      by
      this Lease. 

     

    19.1.3.
      Abandonment
      and Vacation.
      The
      vacation or abandonment of the Premises by Tenant. “Vacation” means any absence
      by Tenant from the Premises for fourteen (14) or more consecutive days.


     

    19.1.4.
      Cross-Default.
      If
      Tenant (or an Affiliate of Tenant) is in default of any other lease or occupancy
      agreement between Landlord (or an Affiliate of Landlord) and Tenant (or an
      Affiliate of Tenant), all as the case may be. 

     

    19.1.5.
      Bankruptcy.
      The
      making by Tenant of any general assignment for the benefit of creditors, the
      filing by or against Tenant of a petition to have Tenant adjudged a bankrupt
      or
      of a petition for reorganization or arrangement under any law relating to
      bankruptcy (unless, in the case of a petition filed against Tenant, the same
      is
      dismissed within sixty [60] days), or the appointment of a trustee or receiver
      to take possession of, or the attachment, execution or other judicial seizure
      of, substantially all of Tenant’s assets located at the Premises or of Tenant’s
      interest in this Lease, where such seizure is not discharged within thirty
      (30)
      days. 

     

    19.1.6.
      Other
      Non-Monetary Defaults.
      The
      failure by Tenant or any of the Tenant Parties to observe or perform any of
      the
      covenants, conditions or provisions of this Lease to be observed or performed
      by
      Tenant not previously covered by Section 19.1.1 through Section 19.1.5 above
      (however Tenant shall have up to ten [10] days after written notice from
      Landlord to cure such default except if the nature of Tenant’s default is such
      that it cannot be cured solely by payment of money and more than ten [10] days
      are reasonably required for its cure, then Tenant shall be obligated to commence
      such cure within the ten [10]-day period and thereafter diligently prosecute
      such cure to completion). 

     

    19.2.
      Sufficiency
      of Notices.
      Any
      notice required or permitted by this Article 19 shall be in lieu of, and not
      in
      addition to, any notice required under any Governmental Regulations providing
      for notice and any cure period. Landlord may (at its discretion) serve a
      statutory notice to quit, a statutory notice to pay rent or quit, or a statutory
      notice of default, as the case may be, to effect the giving of any notice
      required by this Article 19. No notice and opportunity to cure is conferred
      upon
      Tenant with regard to any default except as expressly set forth in Section
      19.1.


     

    19.3.
      Involuntary
      Assignment.
      An
      Involuntary Assignment shall constitute a default by Tenant and Landlord shall
      have the right to elect to terminate this Lease, in which case this Lease shall
      not be treated as an asset of Tenant. All sums payable by Tenant under this
      Lease shall be and remain the exclusive property of Landlord and shall not
      constitute property of Tenant or of the estate of Tenant within the meaning
      of
      the Bankruptcy Code. Such sums which are not paid or delivered to Landlord
      shall
      be held in trust for the benefit of Landlord, and shall be promptly paid or
      turned over to Landlord upon demand. Any 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 of Tenant
      arising under this Lease on and after the date of such assignment, and all
      of
      the terms and provisions of this Lease shall be binding upon such assignee.
      Any
      such assignee shall upon demand 

     

     

    
      
        
        

      

      
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    execute
      and deliver such instruments and documents reasonably requested by Landlord
      confirming such assumption. 

     

    20.
      LANDLORD’S REMEDIES 

     

    20.1.
      Landlord’s
      Remedies.
      Upon a
      default hereunder, should Tenant fail within the time period, if any, specified
      in Article 19 to fully cure such default, then without limiting Landlord in
      the
      exercise of any other right or remedy at law or in equity which Landlord may
      have (all remedies provided herein being non-exclusive and cumulative), Landlord
      may do any one or more of the following: 

     

    20.1.1.
      Continue
      Lease.
      Landlord may continue this Lease in effect after Tenant’s default and recover
      Rent as it becomes due. Accordingly, if Landlord does not elect to terminate
      this Lease on account of any default by Tenant, Landlord may, from time-to-time,
      without terminating this Lease, enforce all of its rights and remedies under
      this Lease, including the right to recover all Rent and other monetary charges
      as they become due. 

     

    20.1.2.
      Terminate
      Lease.
      Landlord may terminate Tenant’s right to possession by any lawful means, in
      which case this Lease shall terminate and Tenant shall immediately surrender
      possession of the Premises to Landlord. In such event Landlord shall be entitled
      to recover from Tenant all damages incurred by Landlord by reason of Tenant’s
      default including (without limitation) the following: (a) The worth at the
      time
      of award of any unpaid Rent which had been earned at the time of such
      termination; plus (b) the worth at the time of award of the amount by which the
      unpaid Rent which would have been earned after termination until the time of
      award exceeds the amount of such Rent loss that Tenant proves could have been
      reasonably avoided; plus (c) the worth at the time of award of the amount by
      which the unpaid Rent for the balance of the Term after the time of award
      exceeds the amount of such Rent loss that Tenant proves could have been
      reasonably avoided; plus (d) any other amount and court costs necessary to
      compensate Landlord for all the detriment proximately caused by Tenant’s default
      or which in the ordinary course of things would be likely to result therefrom
      (including, without limiting the generality of the foregoing, the amount of
      any
      commissions, finder’s fee, advertising costs, remodeling costs and attorneys’
fees in connection with obtaining a replacement tenant); plus 

    (e)
      at
      Landlord’s election, such other amounts in addition to or in lieu of the
      foregoing as may be permitted from time-to-time by applicable law. As used
      in
      subparagraphs (a) and (b) of this Section 20.1.2, the “worth at the time of
      award” shall be computed by allowing interest at the Agreed Rate, and, as used
      in subparagraph (c) of this Section 20.1.2, the “worth at the time of award” is
      to be computed by discounting such amount at the discount rate of the U.S.
      Federal Reserve Bank of San Francisco at the time of award, plus one percent
      (1%). For the purpose of determining the amount of Tenant’s Share of Variable
      Costs which constitute “unpaid Rent which would have been earned after
      termination” or which constitute “unpaid Rent for the balance of the term” (as
      referenced in subparagraphs [b] and [c] hereof), such amounts shall be deemed
      to
      increase annually for the balance of the Term by an amount equal to the average
      annual percentage increase in Variable Costs during the three (3) calendar
      years
      preceding the year in which the Lease was terminated, or, if such termination
      shall occur prior to the expiration of the third calendar year occurring during
      the Term of this Lease, then the amount of Tenant’s Share of Variable Costs
      shall be deemed to increase monthly for the balance of the Term by an amount
      equal to the average monthly percentage increase in Tenant’s Share of Variable
      Costs during all of the calendar months preceding the month in which the Lease
      was terminated. 

     

    20.1.3.
      Collect
      Sublease Rents.
      Landlord may collect sublease rents (or appoint a receiver to collect such
      rents) and otherwise perform Tenant’s obligations at the Premises, it being
      agreed, however, that neither the filing of a petition for the appointment
      of a
      receiver for Tenant nor the appointment itself shall constitute an election
      by
      Landlord to terminate this Lease. 

     

    20.1.4.
      Cure
      Default.
      Landlord may proceed to cure the default at Tenant’s sole cost and expense,
      without waiving or releasing Tenant from any obligation hereunder. If at any
      time Landlord pays any sum or incurs any expense as a result of or in connection
      with curing any default of Tenant (including any administrative fees provided
      for herein and reasonable attorneys’ fees), the amount thereof shall be
      immediately due as a Reimbursed Cost. 

     

    20.1.5.
      Disposition
      of Property.
      Landlord may dispose of any Personal Property remaining on the Premises in
      accordance with applicable statutes relating to the disposition of abandoned
      property. If no such statute exists, Landlord shall have the right to retain
      possession of all of the Personal Property left in the Premises or, at
      Landlord’s option, to require Tenant at any time to forthwith remove same, and
      if not so removed within three (3) business days, to take title and possession
      of the same and to sell or otherwise dispose of the same, without any liability
      

    (a)
      to
      Tenant for such property or (b) to pay to Tenant the proceeds from the sale
      thereof. 

     

    20.2.
      No
      Offsets.
      All
      covenants and agreements to be performed by Tenant under this Lease shall be
      performed by Tenant at Tenant’s sole cost and expense and without any offset to
      or abatement of Rent, except as otherwise expressly provided in this Lease.
      Tenant hereby waives any right to plead all non-compulsory counterclaims or
      offsets in any action or proceeding brought by Landlord against Tenant for
      any
      default. This waiver shall not be construed, however, as a waiver of any right
      of Tenant to assert any non-compulsory counterclaims or offsets in any separate
      action brought by Tenant. 

     

     

    
      
        
        

      

      
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    21.
      DEFAULTS BY LANDLORD 

     

    21.1.
      Defaults
      by Landlord.
      If
      Landlord fails to perform or observe any of the terms, covenants or conditions
      contained in this Lease on its part to be performed or observed within thirty
      (30) days after written notice of default from Tenant or, when more than thirty
      (30) days shall be required because of the nature of the default, if Landlord
      shall fail to commence to cure such default after written notice thereof from
      Tenant and thereafter diligently pursue such cure to completion, said failure
      shall constitute a default by Landlord under this Lease. If any or all of the
      Premises or any interest of Landlord in this Lease or the Rent are at any time
      subject to any mortgage or deed of trust and if Tenant is given notice of the
      name and address of the Mortgagee, then Tenant shall give written notice of
      any
      default by Landlord to the Mortgagee concurrently when providing Landlord
      notice, specifying the default in reasonable detail. If Landlord fails to cure
      such default within the applicable cure period, Tenant shall give written notice
      of such failure to Mortgagee affording Mortgagee the same opportunity to cure
      as
      provided Landlord in this Section. If Mortgagee does perform on behalf of
      Landlord, such default shall be deemed cured. 

     

    1  Limitations
      on Recovery Against Landlord.
      The
      aggregate liability of Landlord and the Landlord Parties to Tenant for any
      default by Landlord under this Lease or arising in connection herewith or with
      the operation, management, leasing, repair, renovation, alteration of, or any
      other matter relating to, the Center or the Premises shall be limited solely
      and
      exclusively to an amount equal to the interest of Landlord in the Center, and
      neither Landlord nor any of the Landlord Parties shall have any personal
      liability therefor, and Tenant hereby expressly waives and releases such
      personal liability on behalf of itself and all persons claiming by, through
      or
      under Tenant. The limitations of liability contained in this Article 21 shall
      inure to the benefit of Landlord and the Landlord Parties and each of their
      respective partners, heirs, successors and assigns. Under no circumstances
      shall
      any present or future partner of Landlord (if Landlord is a partnership), or
      trustee or beneficiary (if Landlord or any partner of Landlord is a trust),
      have
      any liability for the performance of Landlord’s obligations under this Lease.
      Notwithstanding any contrary provision herein, neither Landlord nor the Landlord
      Parties shall be liable under any circumstances for injury or damage to, or
      interference with, Tenant’s business, including but not limited to, loss of
      profits, loss of rents or other revenues, loss of business opportunity, loss
      of
      goodwill or loss of use, in each case, however occurring. 

    2  COSTS
      OF SUIT 

    


    1  Costs
      of Suit.
      If
      either party brings action for relief against the other, declaratory or
      otherwise, arising out of this Lease, including any suit by Landlord for the
      recovery of Rent or possession of the Premises, the non-prevailing party shall
      pay the prevailing party its reasonable costs, fees and expenses incurred in
      connection with and in preparation for said action, including its reasonable
      attorneys’ fees. 

    2  DAMAGE
      AND DESTRUCTION 

    


    23.1.
      Insured
      Casualty.
      Upon
      the occurrence of an Insured Casualty to the Premises, Landlord shall promptly
      and diligently, subject to reasonable delays for insurance adjustment and
      payment, issuance of permits or other matters beyond Landlord’s reasonable
      control, and subject to all other terms of this Article 23, restore the damaged
      Premises (except for such work with respect to the Premises which is the
      responsibility of Tenant pursuant to this Article 23). Tenant, at its sole
      cost
      and expense, shall be responsible for the prompt and diligent repair and
      restoration of all items constituting Improvements and Personal Property (which
      repair and restoration work shall be completed no later than sixty [60] days
      after the completion of Landlord’s work under this Section 23.1). All repair and
      restoration activities by Landlord and Tenant shall be conducted in accordance
      with Exhibit
      C
      and the
      Tenant Package. 

     

    23.2.
      Uninsured
      Casualty.
      Upon
      the occurrence of an Uninsured Casualty to the Premises, Landlord shall have
      the
      right (in its sole discretion) to elect either to commence repair and
      restoration of the Premises (in which event this Lease shall continue in full
      force and effect and Landlord and Tenant shall diligently perform their
      respective repair and restoration obligations required pursuant to Section
      23.1)
      or not to perform such repair and restoration, in which event this Lease shall
      cease and terminate sixty (60) days after Landlord’s notice of its election to
      terminate. Landlord shall give Tenant notice of its election under this Section
      23.2 within ninety (90) days following the later of (a) the date of such
      Uninsured Casualty, or (b) the date that Landlord’s insurers determine that the
      Casualty is an Uninsured Casualty. 

     

    23.3.
      Rent
      Abatement.
      Landlord shall not be liable for any inconvenience or annoyance to Tenant or
      the
      Tenant Parties, or injury to Tenant’s business, resulting in any way from any
      Casualty or repair and restoration work. If any Casualty damages the Premises,
      or if the Premises are not reasonably accessible (and are not used) due to
      any
      Casualty to the Common Area, Tenant shall be entitled to a proportionate
      abatement of Fixed Minimum Rent during such time and to such extent the Premises
      are unfit for occupancy for the Permitted Use and are not so occupied or used
      by
      Tenant or the Premises are not reasonably accessible (and thus are not used
      by
      Tenant) due to damage to the Common Area. However, if the Casualty is due to
      the
      gross negligence or willful misconduct of Tenant or any of the Tenant Parties,
      Tenant shall be responsible for any reasonable, applicable insurance deductible
      (which shall be payable to Landlord upon demand) and there shall be no Rent
      abatement. 

     

     

    
      
        
        

      

      
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    23.4.
      Major
      Destruction.
      Notwithstanding any of the foregoing provisions of this Article 23, should
      there
      be a Major Destruction of the Center at any time during the Term, Landlord
      shall
      have the right to terminate this Lease by written notice to Tenant, which notice
      shall be given within one hundred twenty (120) days following the date of such
      Major Destruction (in which case such termination shall then take effect on
      the
      date specified in Landlord’s termination notice). 

     

    1  Insurance
      Proceeds.
      In the
      event of termination of this Lease pursuant to this Article 23, Landlord and
      Tenant shall each be released from any liability or obligation under this Lease
      (except as otherwise provided for in this Lease) arising after the date of
      such
      termination. In the event of such termination, all proceeds from Tenant’s
      insurance (including self-insurance and deductibles) covering the Improvements
      (but excluding proceeds for Personal Property) shall be payable to Landlord.
      In
      no event shall Tenant be entitled to share in Landlord’s insurance proceeds or
      to take any action which would result in a reduction of Landlord’s insurance
      proceeds. 

    2  CONDEMNATION
      

    


    24.1.
      Total
      Taking.
      If
      there is a Taking of the entire Premises, this Lease shall terminate as of
      the
      date of such Taking, and Landlord and Tenant shall have no further liability
      or
      obligation (except as otherwise provided for in this Lease) arising under this
      Lease after such date. 

     

    24.2.
      Partial
      Taking; Right to Terminate.
      If more
      than twenty-five percent (25%) of the Floor Area of the Premises is taken,
      or if
      by reason of any Taking, regardless of the amount so taken, the remainder of
      the
      Premises is rendered unusable for the Permitted Use, Landlord and Tenant shall
      each have the right to terminate this Lease as of the date Tenant is required
      to
      vacate the portion of the Premises which is the subject of such Taking, upon
      giving notice of such election within thirty (30) days after the Taking. In
      addition, if there is a Taking of fifteen percent (15%) or more of the Floor
      Area of the Center and/or fifteen percent (15%) or more of the parking areas
      of
      the Center, Landlord shall have the right to terminate this Lease upon ninety
      (90) days’ written notice to Tenant. In the event of any termination of this
      Lease pursuant to this Article 24, Landlord and Tenant shall be released from
      any liabilities and obligations under this Lease (except as otherwise provided
      for in this Lease) arising after the date of termination. Landlord and Tenant
      shall, after learning of any Taking, promptly give notice thereof to each other.
      No temporary Taking of the Premises or any part of the Center (meaning a Taking
      of less than nine [9] months) shall terminate this Lease. 

     

    24.3.
      Restoration
      and Rent Abatement.
      If this
      Lease does not terminate pursuant to Sections 24.1 or 24.2 above, then Tenant
      shall continue to occupy that portion of the Premises not taken and the parties
      shall proceed as follows: (a) Landlord shall, at its sole cost and expense,
      restore the Premises remaining to a complete unit of like quality and character
      as existed prior to such Taking (except for such work with respect to the
      Premises which is the responsibility of Tenant pursuant to this Section 24.3),
      (b) Tenant, at its sole cost and expense, shall be responsible for the repair
      and restoration of the Improvements and Personal Property and (c) Fixed Minimum
      Rent and any Additional Rent that is calculated on the basis of Floor Area
      shall
      be calculated on the basis of the remaining Floor Area of the Premises.


     

    1  Award.
      No
      award for any partial or entire Taking shall be apportioned, and Tenant hereby
      assigns to Landlord any and all rights of Tenant now or hereafter arising in
      or
      to the same or any part thereof. Tenant may file a separate claim for an award
      at its sole cost and expense for, and nothing contained herein shall be deemed
      to give Landlord any interest in, or to require Tenant to assign to Landlord,
      any award made to Tenant for compensation for loss of business or for damage
      to
      or loss of Personal Property; provided, however, that no such claim shall
      diminish or otherwise affect the awards otherwise payable to Landlord and each
      of Landlord’s Designees. 

    2  HAZARDOUS
      MATERIALS 

    


    25.1.
      Compliance.
      Tenant
      covenants and agrees that Tenant shall, at all times during the Term and at
      its
      sole cost and expense, comply with and assume responsibility and liability
      under
      all Environmental Laws applicable to occupancy or use of or operations at the
      Premises by Tenant and the Tenant Parties. In the event that Tenant proposes
      to
      undertake any Improvements, Tenant shall comply (at Tenant’s sole cost) with
      Landlord’s criteria (as established from time to time) for testing and
      remediation of Hazardous Materials. 

     

    25.2.
      Notification.
      Tenant
      agrees that should it or any of the Tenant Parties know of (a) any violation
      of
      Environmental Laws relating to the Premises, or (b) the escape, release or
      threatened release of any Hazardous Materials in, on, under or about the
      Premises, Tenant shall promptly notify Landlord in writing of such violation,
      escape, release or threatened release, and that it will provide all warnings
      of
      exposure to Hazardous Materials in, on, under or about the Premises in strict
      compliance with all applicable Environmental Laws. 

     

    25.3.
      Hazardous
      Materials.
      Tenant
      shall at no time use, analyze, generate, manufacture, produce, transport, store,
      treat, release, dispose of or permit the escape of, or otherwise deposit in,
      on,
      under or about the Premises or the Center, any Hazardous Materials, or permit
      or
      allow any of the Tenant Parties to do so. 

     

     

    
      
        
        

      

      
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    26.
      SUBORDINATION AND ESTOPPEL 

     

    26.1.
      Subordination.
      Tenant
      covenants and agrees that (a) this Lease is and shall automatically and without
      further act or deed by Tenant be subject and subordinate to any mortgages,
      deeds
      of trust, security deeds or other security instruments, and any ground leases
      or
      underlying leases presently existing or hereafter placed upon all or any portion
      of the Center (each a “Mortgage”) and to any and all advances to be made
      thereunder, and to any interest accrued thereon, and to all renewals,
      replacements, modifications, consolidations and extensions thereof or
      participation thereof, (b) any mortgagee, grantee, master lessor, beneficiary
      or
      trustee (each a “Mortgagee”) may elect to have this Lease made a prior lien to
      its Mortgage, and in the event of such election and upon notification by such
      Mortgagee to Tenant to that effect, this Lease shall be deemed prior in lien
      to
      said Mortgage, whether this Lease is dated prior to or subsequent to the date
      of
      any such Mortgage and (c) Tenant shall execute and deliver whatever instruments
      may reasonably be required by Landlord or any present or prospective Mortgagee
      to acknowledge such subordination or priority (as applicable) in recordable
      form. If any proceeding is brought for default under any Mortgage to which
      this
      Lease is subject, or in the event of foreclosure, deed in lieu of foreclosure
      or
      the exercise of the power of sale under any Mortgage covering the Premises
      and
      if requested by Landlord’s successor, Tenant shall attorn to the successor and
      shall recognize that successor as Landlord under this Lease. Such successor
      shall not be (i) liable for any previous act or omission of Landlord under
      this
      Lease, (ii) subject to any offset that theretofore accrued to Tenant against
      Landlord or (iii) bound by any previous prepayment of Rent or Security Deposit
      which have not been expressly delivered by Landlord to such successor. If so
      requested, Tenant shall enter into a new lease with that successor on the same
      terms and conditions as are contained in this Lease (for the unexpired Term
      of
      this Lease then remaining). 

     

    1  Estoppel
      Certificate.
      Tenant
      shall, from time-to-time within ten (10) days after prior written notice from
      Landlord, execute, acknowledge and deliver to Landlord a statement in writing
      in
      such form as may be reasonably required by Landlord (a) certifying that this
      Lease is unmodified and in full force and effect (or, if modified, stating
      the
      nature of such modification and certifying that this Lease, as so modified,
      is
      in full force and effect) and the date to which the Rent and other charges
      are
      paid in advance, if any; (b) acknowledging that there are not, to Tenant’s
      knowledge, any uncured defaults on the part of Landlord hereunder (or specifying
      such defaults if they are claimed); and (c) containing such other matters as
      are
      set forth in such form. Any such statement may be conclusively relied upon
      by
      any prospective purchaser or encumbrancer of the Premises. Tenant’s failure to
      deliver such statement within such time shall be conclusive upon Tenant that
      this Lease is in full force and effect, without modification except as may
      be
      represented by Landlord, that there are no uncured defaults in Landlord’s
      performance, and that not more than one (1) month’s Fixed Minimum Rent has been
      paid in advance. 

    2  MISCELLANEOUS
      

    


    27.1.
      Amendments.
      No
      provision of this Lease may be amended except by an agreement in writing signed
      by the parties hereto or their respective successors-in-interest. 

     

    27.2.
      Application
      of Payments.
      Landlord shall have the right to apply payments received from Tenant pursuant
      to
      this Lease, regardless of Tenant’s designation of such payments, to satisfy any
      obligations of Tenant hereunder, in such order and amounts as Landlord, in
      its
      sole discretion, may elect. Notwithstanding any contrary provision in this
      Lease, if Landlord is obligated to credit or refund any amount owed by Landlord
      to Tenant and if at such time there is any outstanding Rent due Landlord,
      Landlord may elect to apply such credit and/or refund toward such outstanding
      Rent. 

     

    27.3.
      Audits.
      Landlord and Tenant shall each have the right to audit the other party’s books
      and records respecting Gross Sales and Tenant’s Share of Variable Costs
      (respectively). Such audits shall be conducted during business hours by a
      non-contingency fee auditor who was not previously employed by the other and
      is
      not employed by a competitor of the other at such offices as the audited party
      shall reasonably specify. A party may not conduct an audit (a) more than once
      in
      each Lease Year or 

    (b)
      while
      such party is in default of the Lease. If an audit should disclose that the
      audited party shall have understated Gross Sales or overstated Tenant’s Share of
      Variable Costs (as applicable) by more than five percent (5%), then the audited
      party shall pay to the other party all reasonable costs and expenses relating
      to
      such audit (including, without limitation, reasonable travel costs) in addition
      to paying any additional amounts due under this Lease or refunding any
      overpayment made under this Lease as a result of such understatement or
      overstatement, as applicable. The results of any such audit shall be kept
      confidential and not disclosed to any third parties (except to the extent
      required by law). Neither party shall have the right (whether at law, at equity
      or under this Lease) to audit (1) Gross Sales or Tenant’s Share of Variable
      Costs (as applicable) except on the express terms and conditions provided in
      this Section 27.3 or (2) the amount payable by Tenant as Fixed Costs.


     

    27.4.
      Authority
      of Signatories.
      Each
      person executing this Lease on behalf of Tenant represents and warrants that
      he
      or she is duly authorized to execute and deliver this Lease on behalf of Tenant,
      and that Tenant is qualified to do business in the state where the Center is
      located, and shall deliver appropriate certification to that effect if
      requested. 

     

    27.5.
      Binding
      Effect.
      Except
      as otherwise expressly provided in this Lease, all of the provisions of this
      Lease shall be binding upon and inure to the benefit of the parties hereto
      and
      their respective heirs, legal representatives, successors and assigns.


     

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    
      	27.6.	
              Brokers.
                Landlord and Tenant shall each indemnify, defend and hold the other
                harmless from and against, all damages (including reasonable attorneys’
                fees and costs) resulting from any claims that may be asserted against
                Landlord or Tenant by any broker, finder, or other person with whom
                the
                indemnifying party has or purportedly has dealt.
                

            


    

     

    27.7.
      Captions.
      The
      names of Articles and Sections are for convenience only and shall not be used
      to
      interpret or construe the meaning of any provision in this Lease. All references
      to Articles, Sections and Exhibits are references to Articles and Sections
      contained in this Lease and Exhibits attached to this Lease unless otherwise
      expressly provided. 

     

    27.8.
      Choice
      of Law.
      This
      Lease shall be governed by the laws of the state where the Center is located.
      

     

    27.9.
      Confidentiality.
      Tenant
      shall keep the content of this Lease and all related documents strictly
      confidential and shall not disclose such confidential information to any person
      or entity other than Tenant’s financial, legal and space planning consultants.


     

    27.10.
      Counterparts.
      This
      Lease may be executed in counterparts with the same effect as if both parties
      hereto had executed the same document. All counterparts shall be construed
      together and shall constitute a single Lease. 

     

    27.11.
      Execution
      by Landlord.
      The
      submission of this document to Tenant does not constitute an offer to lease,
      or
      a reservation of, or an option for, the Premises. This document becomes
      effective and binding only upon Landlord’s delivery to Tenant of a counterpart
      executed by both Landlord and Tenant. Until this Lease is executed by both
      Landlord and Tenant and delivered by Landlord to Tenant, Landlord and its agents
      may continue to negotiate with third parties for the leasing of all or portions
      of the Premises. No act or omission of any employee or agent of Landlord or
      of
      Landlord’s broker shall alter, change or modify any of the provisions hereof.


     

    27.12.
      Exhibits.
      All
      exhibits affixed to this Lease are made a part of, and are incorporated into,
      this Lease. In particular, the Center Rider, attached as Exhibit
      E,
      reflects certain provisions particular to the Center and the state in which
      the
      Premises are located. If there are any inconsistencies between this Lease and
      the provisions of Exhibit
      E,
      the
      provisions of Exhibit
      E
      shall
      prevail. 

     

    27.13.
      Force
      Majeure.
      Any
      prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts
      of
      God, acts of war or terrorism, inability to obtain services, labor, or materials
      or reasonable substitutes therefor, governmental actions, civil commotions,
      fire
      or other Casualty, in each case if due to a cause beyond the reasonable control
      of the party obligated to perform, and other causes beyond the reasonable
      control of the party obligated to perform, except with respect to the
      obligations imposed with regard to Rent payable by Tenant pursuant to this
      Lease
      and Tenant’s obligations under Section 12.1.2 (collectively, “Force Majeure”)
      shall, notwithstanding anything to the contrary contained in this Lease, excuse
      the performance of such party for a period equal to any such prevention, delay
      or stoppage and, therefore, if this Lease specifies a time period for
      performance of an obligation of either party, that time period shall be extended
      by the period of any delay in such party’s performance caused by a Force
      Majeure. For purposes of this Section 27.13, a cause shall not be deemed beyond
      a party’s control if it is within the control of such party’s agents, employees
      or contractors. 

     

    27.14.
      Independent
      Covenants.
      This
      Lease shall be construed as though the covenants herein between Landlord and
      Tenant are independent and not dependent and Tenant hereby expressly waives
      the
      benefit of any statute to the contrary. 

     

    27.15.
      Labor
      Contracts.
      Neither
      Tenant nor any of the Tenant Parties shall take any action which violates
      Landlord’s labor contracts affecting the Center or which creates any work
      stoppage, picketing, labor disruption or dispute, or interferes with the
      business of Landlord or any Occupant in the Center or with the rights and
      privileges of any customer or other person(s) lawfully in the Center, or causes
      any impairment or reduction of the goodwill of the Center. If there shall be
      any
      work stoppage, picketing, labor disruption or dispute as the result of the
      actions of Tenant or any of the Tenant Parties, Tenant shall immediately
      undertake such action as may be necessary to eliminate such dispute or potential
      dispute, including, but not limited to, (a) removing all disputants from the
      job
      site until such time as the labor dispute no longer exists, (b) seeking a
      judgment for a breach of contract between Tenant and Tenant’s contractor and (c)
      filing appropriate unfair labor practice charges in the event of a union
      jurisdictional dispute. 

     

    27.16.
      Landlord
      and Tenant.
      The
      words “Landlord” and “Tenant” include the plural as well as the singular. Words
      used in the neuter gender include the masculine and feminine and words in the
      masculine or feminine gender include the neuter. If there is more than one
      person or entity constituting Landlord or Tenant, the obligations imposed
      hereunder upon Landlord or Tenant are joint and several. If Tenant consists
      of a
      husband and wife, the obligations of Tenant hereunder extend individually to
      the
      sole and separate property of each of them as well as to their community
      property. The obligations contained in this Lease to be performed by Landlord
      shall be binding on Landlord’s successors and assigns only during their
      respective periods of ownership of the Premises. 

     

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

    27.17.
      Merger.
      This
      Lease contains all of the agreements of the parties hereto with respect to
      any
      matter covered or mentioned in this Lease, and no prior agreement, negotiations,
      brochures, arrangements, or understanding pertaining to any such matter shall
      be
      effective for any purpose unless expressed herein. 

     

    27.18.
      Modification
      of Lease.
      Should
      any current or prospective Mortgagee require a modification of this Lease,
      which
      modification will not cause an increased cost or expense to Tenant or in any
      other way materially and adversely change the rights and obligations of Tenant
      hereunder, then, and in such event, Tenant agrees that this Lease may be so
      modified and agrees to execute whatever documents are reasonably required
      therefor and to deliver the same to Landlord within ten (10) days following
      a
      request therefor. At the request of Landlord or any Mortgagee, Tenant agrees
      to
      execute a short form of Lease and deliver the same to Landlord within ten (10)
      days following the request therefor. 

     

    27.19.
      Name
      of Center.
      Landlord expressly reserves the right at any time, after no less than sixty
      

    (60)
      days’ notice to Tenant, to change the name of the Center without any liability
      to Tenant. Tenant shall use the Center’s name in referring to the location of
      the Premises in all newspaper, radio, television and other advertising with
      respect to Tenant’s business at the Premises. 

     

    27.20.
      No
      Consent or Approval.
      Landlord’s or Tenant’s consent to or approval of any act by the other requiring
      its consent or approval shall not constitute a consent or approval of any
      subsequent act by the other. 

     

    27.21.
      No
      Violation.
      Tenant
      hereby warrants and represents that neither its execution of nor performance
      under this Lease shall cause Tenant to be in violation of any agreement,
      instrument, contract, law, rule or regulation by which Tenant is bound.


     

    27.22.
      No
      Warranty.
      In
      executing and delivering this Lease, Tenant has not relied on any
      representations, including, but not limited to, any representation as to the
      amount of any item comprising Costs or the amount of the Costs in the aggregate
      or that Landlord is furnishing the same services to other tenants, at all,
      on
      the same level or on the same basis as to Tenant, or any warranty or any
      statement which is not set forth herein or in one or more of the exhibits
      attached hereto. 

     

    27.23.
      Nondiscrimination.
      Tenant
      covenants for itself, its heirs, executors, administrators, successors, and
      assigns and all persons claiming under or through it or them, that there shall
      be no discrimination against or segregation of any person or group of persons
      on
      account of race, color, religion, creed, sex, marital status, sexual
      orientation, national origin, ancestry, age, physical handicap or medical
      condition, in the leasing, subleasing, transferring, use, occupancy, tenure
      or
      enjoyment of the Premises herein leased, and Tenant and any person claiming
      under or through Tenant shall not establish or permit any such practice or
      practices of discrimination or segregation with reference to the selection,
      location, number, use or occupancy of tenants, subtenants, licensees, vendees
      or
      customers in the Premises. 

     

    27.24.
      Nonrecordability
      of Lease.
      Tenant
      shall not record this Lease or a memorandum hereof without Landlord’s express
      prior written consent, which consent may be withheld in Landlord’s sole
      discretion. 

     

    27.25.
      OFAC
      Certification 

     

    27.25.1.
      Representation
      and Warranty.
      Tenant
      represents and warrants that: 

     

    27.25.1.1.
      It is not, and shall not become, a person or entity with whom Landlord is
      restricted from doing business under regulations of the Office of Foreign Asset
      Control (“OFAC”) of the Department of the Treasury (including, but not limited
      to, those named on OFAC’s Specially Designated and Blocked Persons list) or
      under any statute, executive order (including, without limitation, the September
      24, 2001 Executive Order Blocking Property and Prohibiting Transactions With
      Persons Who Commit, Threaten to Commit, or Support Terrorism, as amended
      [“Executive Order 13224”]), or other governmental action and is not, and shall
      not, engage in any dealings or transactions or otherwise be associated with
      such
      persons or entities; and 

     

    27.25.1.2.
      It is not acting, directly or indirectly, for or on behalf of any person, group,
      entity or nation with whom Landlord is restricted from doing business under
      the
      regulations of OFAC (including, but not limited to, Executive Order 13224)
      or
      other governmental action and is not and shall not engage in any dealings or
      transactions, employ or otherwise be associated, with such person, group, entity
      or nation. 

     

    27.25.2.
      Default.
      Any
      breach of the representation and/or warranty contained in this Section 27.25
      shall constitute a non-curable default and is grounds for immediate termination
      of this Lease by Landlord. Any such exercise by Landlord of its remedies under
      this Section 27.25 shall not constitute a waiver by Landlord to recover (a)
      any
      Rent due under this Lease and (b) any damages arising from such breach by
      Tenant. 

     

    27.26.
      Quiet
      Enjoyment.
      So long
      as Tenant timely pays all Rent, timely performs its covenants and obligations
      under this Lease and recognizes any successor to Landlord in accordance with
      the
      terms of this Lease, Tenant shall lawfully and quietly have, hold and enjoy
      the
      Premises during the Term without
      hindrance or molestation by Landlord or anyone claiming by, through or under
      Landlord, subject, however, to all Superior Agreements. 

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

     

    27.27.
      REIT
      Qualifications.
      Landlord and Tenant agree that all Rent paid to Landlord under this Lease shall
      qualify as “rents from real property” as defined in Internal Revenue Code
      Section 856(d) and as further defined in Treasury Regulation Section 1.856-4,
      as
      each is amended from time-to-time. Should the requirements of the said Internal
      Revenue Code Section or Treasury Regulation Section be amended so that any
      rent
      no longer qualifies as “rents from real property” for the purposes of the
      Internal Revenue Code or the Treasury Regulation, the Rent payable to Landlord
      shall be adjusted so that such Rent will qualify as “rents from real property”
under the Internal Revenue Code and Treasury Regulation; provided that such
      adjustments required pursuant to the provisions of this Section 27.27 shall
      not
      increase the monetary obligations of Tenant. If any adjustment of Rent under
      this Section 27.27, or if Landlord in good faith determines that its status
      as a
      real estate investment trust under the provisions of the Internal Revenue Code
      or the Treasury Regulation will be jeopardized because of any provision of
      this
      Lease, Tenant shall, without charge therefor and within ten (10) days after
      Landlord’s written request therefor, execute and deliver to Landlord such
      amendments to this Lease as may be reasonably required by Landlord to avoid
      such
      jeopardy; provided such amendments do not increase the monetary obligations
      of
      Tenant or in any other manner materially increase Tenant’s obligations or
      materially decrease Tenant’s rights under this Lease. 

     

    27.28.
      Relationship
      of Parties.
      Nothing
      contained in this Lease shall be deemed or construed by the parties hereto
      or by
      any third party to create the relationship of principal and agent, partnership,
      joint venturer or any association between Landlord and Tenant. 

     

    27.29.
      Rules.
      Landlord shall have the right at any time to establish, modify, amend and
      enforce reasonable and non-discriminatory Rules. Tenant shall (and shall cause
      all of the Tenant Parties to) comply with all Rules. 

     

    27.30.
      Security.
      Landlord may from time-to-time elect to obtain or cease to provide security
      services and/or devices for the protection of the Common Area. To the extent
      that such security services and devices are provided, they are not intended
      to
      provide protection for the Premises or the persons thereon or the contents
      thereof and, therefore, Tenant shall obtain any and all security services and/or
      devices as Tenant shall reasonably require for the protection of the Premises,
      the Tenant Parties, and Improvements and Personal Property. No firearms or
      other
      devices that could cause grievous bodily harm shall be used, possessed or
      carried by any of Tenant’s security services, or any of Tenant or the Tenant
      Parties, unless Landlord shall have agreed to the same in writing (which consent
      Landlord may grant or withhold in its sole discretion) and Tenant shall have
      provided Landlord with such instruments as Landlord shall require to protect
      Landlord and the Landlord Parties from any and all liability in connection
      with
      the use of such firearms or devices. 

     

    27.31.
      Severability.
      If any
      provision of this Lease shall, to any extent, be determined by a court of
      competent jurisdiction to be invalid or unenforceable, the remainder of this
      Lease shall not be affected thereby, and every other term and provision of
      this
      Lease shall be valid and enforceable to the fullest extent permitted by law.
      

     

    27.32.
      Submittal
      of Financial Statement.
      At any
      time and from time-to-time during the Term, but not more often than once in
      any
      calendar year, within fifteen (15) days after request therefor by Landlord,
      Tenant shall supply to Landlord and/or any of Landlord’s Designees a current
      financial statement, profit and loss statements for the business at the
      Premises, and/or such other reasonable financial information as may be required
      by any such party. Such information shall be confidential and Landlord shall
      not
      divulge such information, except to any actual or prospective purchaser of
      Landlord’s interest in the Premises or to any actual or prospective lender or as
      may otherwise be required for Landlord to undertake its obligations and rights
      under this Lease. 

     

    27.33.
      Superior
      Agreements.
      This
      Lease and Tenant’s rights hereunder are subject and subordinate in all respects
      to all Superior Agreements. 

     

    27.34.
      Survival.
      Every
      obligation to pay Rent, every indemnification of one party by the other and
      every provision relating to Hazardous Materials shall survive the expiration
      or
      earlier termination of this Lease, unless and to the extent otherwise expressly
      provided in this Lease. 

     

    27.35.
      Time.
      Time is
      of the essence of this Lease and each and every provision hereof, except as
      may
      be expressly provided otherwise. 

     

    27.36.
      Waivers
      

     

    27.36.1.
      Waiver
      of Default.
      No
      delay or omission in the exercise of any right or remedy of Landlord or Tenant
      for any default by the other shall impair such right or remedy or be construed
      as a waiver. Any waiver by Landlord of any default must be in writing and shall
      not be a waiver of any other default concerning the same or any other provision
      of this Lease. 

     

    27.36.2.
      Waiver
      of Redemption by Tenant.
      Tenant
      hereby waives for Tenant and for all those claiming under Tenant all right
      now
      or hereafter existing to redeem by order or judgment of any court or by any
      legal process or writ, Tenant’s right of occupancy of the Premises after any
      termination of this Lease. 

     

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

    27.36.3.
      Waiver
      of Right to Repair.
      Except
      as otherwise expressly provided herein, there shall be no abatement of Rent
      and
      no liability of Landlord by reason of any injury to or interference with
      Tenant’s business arising from the making of any repairs, alterations or
      improvements in or to any portion of the Premises or the Center or in or to
      the
      fixtures, appurtenances and equipment therein. Tenant hereby waives the right
      to
      make repairs at Landlord’s expense under the provisions of any laws permitting
      repairs by a tenant at the expense of a landlord. 

     

    27.36.4.
      Waivers
      Respecting Casualty and Taking.
      The
      provisions of Articles 23 and 24 constitute an express agreement between
      Landlord and Tenant with respect to any Casualty and Taking, respectively.
      Therefore, any statute or regulation of the state in which the Premises are
      located with respect to any rights or obligations concerning damage, destruction
      or condemnation and any other Article of this Lease, shall have no application
      to this Lease as to any Casualty or Taking, respectively, as to which Articles
      23 and 24 shall govern and prevail. 

     

    27.36.5.
      Waiver
      of Trial by Jury and Venue Selection.
      LANDLORD AND TENANT EACH HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING
      OR
      COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTER WHATSOEVER
      ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE OR TENANT’S USE OR
      OCCUPANCY OF THE PREMISES, INCLUDING ANY CLAIM OF INJURY OR DAMAGE, AND ANY
      EMERGENCY AND OTHER STATUTORY REMEDY WITH RESPECT THERETO. LANDLORD AND TENANT
      ALSO AGREE THAT THE VENUE OF ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL
      BE IN THE CITY, COUNTY AND STATE IN WHICH THE CENTER IS LOCATED OR AT SUCH
      OTHER
      CITY AND COUNTY AS MAY BE DETERMINED BY LANDLORD IN ITS SOLE AND ABSOLUTE
      DISCRETION. 

     

    IN
      WITNESS WHEREOF,
      Landlord and Tenant have executed this Lease as of the day and year first


     

    
      	
              above
                written. 

            
	
              LANDLORD:
                

            	
              NEW
                RIVER ASSOCIATES, an
                Arizona general partnership 

            
	 	
              By:
                Westcor Realty Limited Partnership, a Delaware limited partnership
                its
                general partner 

            
	 	
              By:
                Macerich WRLP Corp., a Delaware corporation its general partner
                

            
	 	
              By:
                Name: Title: 

            


    

    


    TENANT: SANDSTROM
      AS SEEN ON TV FRANCHISING COMPANY, a
      Nevada
      corporation 

     

    
      	 By:
              	 	 	 
	
               President
                

            	 	 	 
	 By:
              	 	 	 
	
               Vice
                President 

            	 	 	 


    

     

    LANDLORD'S
      BROKER: 

     

    WESTCOR
      PARTNERS, L.L.C., an Arizona limited liability company 

     

    By:
      William P. Whiteside Its: Designated Broker 

     

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
      A

     

    DEPICTION
      OF CENTER

     

    


    

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

     

     

    EXHIBIT
      A


    EXHIBIT
      B

     

    DEPICTION
      OF PREMISES

     

    


     

    

     

     

     

     

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

     

    EXHIBIT
      C

     

    


     

    PROVISIONS
      FOR THE DESIGN

     

    AND
      CONSTRUCTION OF THE PREMISES

     

    (AS
      IS WITH REMODEL)

     

    


     

    1.
      GENERAL PROVISIONS 

     

    1.1.
      Purpose.
      This
Exhibit
      C
      sets
      forth certain provisions with respect to Landlord’s Work and Tenant’s Work.


     

    1.2.
      Definitions.
      Capitalized terms used in this Exhibit
      C
      without
      definition shall have the meaning ascribed to such terms in the Tenant Package.
      

     

    1  References.
      Unless
      otherwise expressly provided in this Exhibit
      C,
      references to Articles, Sections and captions are references to Articles,
      Sections and captions contained in this Exhibit
      C.
      

     

    2  TENANT
      PACKAGE 

    


    2.1.
      Tenant
      Package.
      Tenant
      acknowledges it has received from Landlord a Tenant Package which shall govern
      all of Tenant’s Work. Tenant shall, and Tenant shall cause, Tenant’s Architect,
      Tenant’s engineer and Tenant’s Contractor and subcontractors to, in all respects
      comply with, and Tenant’s Work shall in all respects be subject to, the Tenant
      Package. “Tenant Package” means the package(s) containing, among other
      materials, the following: (a) Tenant Design and Construction Criteria, (b)
      Sign
      Criteria and Plan Submittal Guidelines, (c) Contractors’ Rules and Regulations
      and 

    (d)
      Technical Manual. The Tenant Package is hereby incorporated herein and made
      a
      part of this Exhibit
      C
      by this
      reference. 

     

    3.
      DESCRIPTION
      OF LANDLORD’S WORK 

     

    3.1.
      Landlord’s
      Work Defined.“Landlord’s
      Work” means the work, if any, which Landlord is expressly obligated to undertake
      pursuant to this Article 3. Landlord shall have no obligation to improve,
      remodel, alter or otherwise modify or prepare the Premises or the Center in
      connection with Tenant’s occupancy. 

     

    3.2.
      Center.
      Landlord or its predecessor-in-interest has constructed the Center, and the
      Building and other improvements upon the Center (exclusive of improvements
      constructed by or on behalf of each present and prior Occupant). Tenant has
      inspected the Center, the Building, the Utilities, the types, quantities and
      qualities of the Utilities, and the other systems and Tenant has found the
      same
      to be suitable, sufficient and in acceptable condition for the purpose of Tenant
      conducting the Permitted Use upon the Premises. Landlord shall have no
      obligation to undertake any work or furnish any additional materials upon any
      part of the Center or to provide any additional Utilities or other systems
      for
      the benefit of the Premises. 

     

    1  Tenant
      Coordinator.
      Landlord shall designate a person, or persons, as Tenant Coordinator (“Tenant
      Coordinator”) who alone shall have authority on behalf of Landlord to oversee
      and manage the review and approval of Preliminary Documents, Construction
      Documents, As-Built Documents, Plan Revisions and other matters specified in
      this Exhibit
      C
      and the
      Tenant Package. No matter shall be deemed approved by Landlord under this
Exhibit
      C
      or the
      Tenant Package unless approved in writing by the Tenant Coordinator. Landlord
      may, from time-to-time and upon written notice to Tenant’s Representative, name
      another person or persons as Tenant Coordinator. 

     

    2  DESCRIPTION
      OF TENANT’S WORK 

    


    4.1.
      Condition
      of Premises.
      Upon
      the Delivery Date, Tenant shall accept delivery of the Premises in an “As Is”
condition and “With All Faults” and Landlord shall have no obligation to
      improve, remodel, alter or otherwise modify or prepare the Premises for Tenant’s
      occupancy except to the extent otherwise expressly stated in Article 3 as
“Landlord’s Work”, if any. Tenant hereby represents each of the following: (a)
      Tenant or its authorized representative has inspected the Premises and has
      made
      all inquiries, tests and studies that it deems necessary in connection with
      its
      leasing of the Premises, 

    (b)
      Tenant is relying solely on Tenant’s own inspection, inquiries, tests and
      studies conducted in connection with, and Tenant’s own judgment with respect to,
      the condition of the Premises and Tenant’s leasing thereof and (c) Tenant is
      leasing the Premises without any representations or warranties, express, implied
      or statutory by Landlord, or Landlord’s agents, brokers, finders, consultants,
      counsel, employees, officers, directors, shareholders, partners, trustees or
      beneficiaries. 

     

    4.2.
      Tenant’s
      Work Defined.
      “Tenant’s Work” means the purchase, installation, construction and performance
      of the improvements and duties specified in the Approved Plans and as described
      in the Tenant Package for a full and complete remodel of the Premises, and
      the
      purchase, installation and construction of all Tenant’s furniture, equipment and
      Personal Property, all at Tenant’s sole cost and expense (except to the extent
      otherwise expressly provided in the Tenant Package) and in compliance with
      applicable Governmental Regulations. All Tenant’s Work shall be performed by a
      licensed, bondable contractor retained by Tenant and approved in advance, in
      writing, by Landlord (“Tenant’s Contractor”). Tenant’s Contractor shall
      construct Tenant’s Work in a good and workmanlike manner and complete Tenant’s
      Work in accordance with the Approved Plans, the Lease and the Tenant Package,
      and in compliance with all Governmental Regulations. 

     

     

    
      
        
        

      

      
        27

        
          

        

      

      
        
        

      

    

     

    4.3.
      Tenant’s
      Architect.
      Tenant
      shall engage the services of a licensed architect (“Tenant’s Architect”) to
      prepare the Preliminary Documents, Construction Documents and As-Built
      Documents. 

     

    4.4.
      No
      Mezzanines.
      No
      mezzanines shall be permitted upon the Premises. The approval of the Preliminary
      Documents or Construction Documents containing any depictions of mezzanines
      shall not constitute either Landlord’s approval of any mezzanine upon the
      Premises or a waiver of the prohibition against mezzanines set forth in this
      Section 4.4. As used herein, the term “mezzanine” shall apply to all mezzanines
      regardless of purpose and shall include, without limitation, mezzanines used
      for
      storage. 

     

    4.5.
      On-Site
      Corrections.
      Tenant
      Coordinator reserves the right to make any on-site corrections to any of the
      Approved Plans. 

     

    4.6.
      Scope
      of Approval.
      Landlord’s approval of the Preliminary Documents, the Construction Documents and
      the Approved Plans shall not constitute any representation or warranty by
      Landlord that the same are complete or sufficient for (a) purposes of Tenant’s
      design, (b) purposes of constructing the Premises or any part of the Premises
      or
      (c) complying with any Governmental Regulations. Landlord shall not be liable
      to
      Tenant if the Preliminary Documents, the Construction Documents or the Approved
      Plans fail to satisfy any of the provisions specified in (a), (b) and/or (c)
      preceding and Tenant shall not be relieved of any of its obligations under
      this
Exhibit
      C,
      the
      Tenant Package, the Lease or Governmental Regulations on account of any such
      approval by Landlord. 

     

    4.7.
      Plan
      Review Fee. Concurrently
      with submitting the Preliminary Documents to Landlord, Tenant shall pay to
      Landlord the Plan Review Fee for Tenant Coordinator’s and/or other consultants’
review of the Preliminary Documents. The time frame in which Landlord is
      obligated to approve or disapprove the Preliminary Documents shall not commence
      until Tenant has paid in full the Plan Review Fee. 

     

    4.8.
      Plan
      Revisions.
      If
      Tenant requires any changes, additions, deletions or other modifications to
      the
      Approved Plans, Tenant shall submit revised Construction Documents clearly
      identifying all changes, additions, deletions and other modifications (“Plan
      Revisions”) to Tenant Coordinator for approval on behalf of Landlord. Tenant
      Coordinator shall promptly review the Plan Revisions and approve, conditionally
      approve or disapprove the Plan Revisions. Plan Revisions shall be at the sole
      cost and expense of Tenant. 

     

    4.9.
      Landlord’s
      Right to Access.
      Throughout the entire course of Landlord’s Work and Tenant’s Work, Landlord,
      Landlord’s authorized representatives (including Tenant Coordinator) and
      Landlord’s contractors shall have access to the Premises and shall have the
      right to inspect the progress of Tenant’s Work, Tenant’s and Tenant’s
      Contractor’s compliance with the provisions of the Lease, this Exhibit
      C and
      the
      Tenant Package, and to install such portions of Landlord’s Work that first
      requires all or some portion of Tenant’s Work to be completed. If Landlord or
      any of Landlord’s representatives or contractors shall enter the Premises during
      the course of Tenant’s Work, Landlord shall use commercially reasonable efforts
      to avoid interfering with the progress of Tenant’s Work upon the Premises.


     

    1  Commencement
      of Tenant’s Work.
      Promptly following (a) the Delivery Date, (b) Landlord’s approval of the
      Approved Plans, (c) Tenant’s receipt of all permits and licenses required by
      governmental authorities and (d) the complete satisfaction of all requirements
      under the Lease, this Exhibit
      C and
      the
      Tenant Package which Tenant and Tenant’s Contractor are obligated to perform
      prior to commencing construction of Tenant’s Work, Tenant shall cause Tenant’s
      Contractor to commence Tenant’s Work in accordance with the Approved Plans, the
      Lease, this Exhibit
      C
      and the
      Tenant Package and to diligently pursue the same to completion and to initially
      open the Premises for business on or before the Required Opening Date.


    2  CLOSE-OUT
      PACKAGE.
      

    


    5.1.
      Close-Out
      Package. Tenant
      shall perform and provide Landlord with each of the following within the time
      frame specified therefor all at Tenant’s sole cost and expense (collectively,
“Close-Out Package”): 

     

    5.1.1.
      Compliance
      and Close Out Documentation.
      All
      compliance and close out documentation as detailed in Section U of the
      Contractors’ Rules and Regulations in connection with the performance of
      Tenant’s Work. 

     

    5.1.2.
      AIA
      Document Requirements 

     

    5.1.2.1.
      For Tenant’s Work with an aggregate cost to Tenant in excess of $1,000,000.00,
      Tenant shall obtain and deliver to Landlord, within thirty (30) days after
      the
      substantial completion of Tenant’s Work, the following documents: (a) AIA
      Document G702, completed, executed and certified by Tenant’s Architect that the
      Premises were constructed in accordance with the Approved Plans and (b) AIA
      Document G703, completed, executed and certified by Tenant’s Contractor.


     

    Arrowhead
      Towne Center - As Seen On TV Retail/Mall/Fixed Costs
      #217342v2<iManage>:04.27.07.1410 Vers 3.0 : 201924_1 : 06.01.06


    5.1.2.2.
      For Tenant’s Work with an aggregate cost to Tenant from $100,000.00 to
      $1,000,000.00, inclusive, Tenant shall obtain and deliver to Landlord, within
      thirty (30) days after the substantial completion of Tenant’s Work, the
      following documents, completed, executed and certified by Tenant’s Contractor:
      (a) AIA Document G702 and (b) AIA Document G703. 

     

    5.1.2.3.
      For Tenant’s Work with an aggregate cost to Tenant of less than $100,000.00,
      Tenant shall obtain and deliver to Landlord, within thirty (30) days after
      the
      substantial completion of Tenant’s Work, a copy of the contract between Tenant
      and Tenant’s Contractor showing Tenant’s Contractor’s aggregate final billing.


     

    5.1.3.
      Affidavit
      of Improvements Cost.
      Tenant
      shall deliver to Landlord, within thirty 

    (30)
      days
      after the substantial completion of Tenant’s Work (a) an affidavit, certified as
      true and correct by an Authorized Officer of Tenant, setting forth in reasonable
      detail the amounts paid by Tenant for the leasehold improvements made by Tenant
      (less any amounts paid by Landlord toward such leasehold improvements and
      specifically excluding all costs for Personal Property), and (b) all paid
      invoices for Tenant’s Work. 

     

    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
      D 

     

    CERTAIN
      DEFINED TERMS 

    1.
      INTENT 

     

    1.1.
      Intent.
      The
      purpose of this Exhibit
      D is
      to set
      forth certain defined terms which are used in the Lease. Terms which are not
      defined in this Exhibit
      D
      are
      defined in the Lease or the Exhibits attached to the Lease. 

     

    1  References.
      All
      references to Articles, Sections and captions contained in this Exhibit
      D are
      Articles, Sections and captions contained in the Lease unless otherwise
      provided. 

    2  CERTAIN
      DEFINED TERMS 

    


    2.1.
      Additional
      Rent
      means
      all amounts payable by Tenant under this Lease, other than Fixed Minimum Rent
      and Percentage Rent. 

     

    2.2.
      Address
      for Payment of Rent
      means
      the address specified at Section 1.19. 

     

    2.3.
      Administrative
      Charge
      means
      fifteen percent (15%) of the subject sum. The Administrative Charge is intended
      to reimburse Landlord for additional administrative costs incurred by Landlord
      for providing work, materials or services. 

     

    2.4.
      Affiliate
      means
      any entity that Controls, is Controlled by or is under common Control with
      another specified entity. 

     

    2.5.
      Agreed
      Rate
      means
      the prime commercial rate of interest charged from time-to-time by Wells Fargo
      Bank, National Association (or, if the same does not exist, such other
      comparable bank selected by Landlord), plus two percent (2%) per annum, but
      not
      to exceed the maximum rate of interest allowable under law. 

     

    2.6.
      Annual
      Base Sales
      means
      the annual figure specified at Section 1.10, as the same may be adjusted from
      time-to-time pursuant to this Lease. 

     

    2.7.
      Annual
      Fixed Minimum Rent
      means
      the annual rent sum specified at Section 1.8, as the same may be adjusted from
      time-to-time pursuant to this Lease. 

     

    2.8.
      Annual
      Sales Statement
      means a
      written statement in the form attached as Exhibit
      G
      to the
      Lease certified to be true and correct by an Authorized Officer of Tenant.
      

     

    2.9.
      Approved
      Plans
      means
      the final set of plans for Landlord’s Work and/or Tenant’s Work (as the case may
      be) which have received the final written approval of both Landlord and Tenant
      to the extent required by any applicable provisions of this Lease and the Tenant
      Package. 

     

    2.10.
      Assignment,
      Assign
      and
Assigning
      mean any
      assignment of Tenant’s interest in the Lease and Assignment
      Instrument
      means
      the instrument by which an Assignment is made. 

     

    2.11.
      Attached
      Fixtures
      means
      such trade fixtures, equipment and other Personal Property which is attached
      or
      affixed to the Premises (including, without limitation, carpeting, flooring,
      lighting, light fixtures, electrical systems, communications wiring and cabling,
      built-in shelving, built-in furniture and the cash wrap). 

     

    2.12.
      Authorized
      Officer
      means
      (a) each natural person who executed the Lease (or the most recent amendment
      of
      the Lease), if Tenant is one or more natural persons, (b) an authorized officer,
      if Tenant is a corporation, (c) an authorized or managing partner, if Tenant
      is
      a partnership or a limited liability partnership or (d) an authorized member,
      if
      Tenant is a limited liability company. 

     

    2.13.
      Bankruptcy
      Code
      means
      the Bankruptcy Code 11 U.S.C. 101 et
      seq.,
      as
      amended from time-to-time. 

     

    2.14.
      Building
      means
      the building, if any, of which the Premises are a part. 

     

    2.15.
      Casualty
      means
      fire or any other casualty. 

     

    2.16.
      Center
      means
      that certain commercial project, the name and approximate location of which
      is
      specified at Section 1.1. 

     

    2.17.
      Center
      Hours
      is
      defined at Section 1.15. 

     

    2.18.
      Claims
      means,
      collectively, claims, charges, liabilities, obligations, penalties, causes
      of
      action, liens, damages, costs and expenses, including reasonable attorneys’ and
      other expert and third party fees and costs. 

     

    2.19.
      Close-Out
      Package
      is
      defined at Exhibit
      C.
      

     

     

    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    

     

    2.20.
      Common
      Area
      means
      all improvements, facilities, equipment, signs, land and areas (as each may
      be
      enlarged, reduced, dedicated to retail use, replaced, increased, removed,
      demolished or otherwise altered in any way by Landlord) within the exterior
      boundaries of the Center which are now or hereafter made available for general
      use, convenience or benefit of more than one (1) Occupant, which may include,
      but shall not be limited to, parking areas, access and perimeter roads,
      driveways, loading docks, pedestrian malls and courts (whether enclosed or
      unenclosed), corridors, stairs, ramps, elevators, escalators, first-aid
      stations, security stations, drinking fountains, toilets, public washrooms,
      community halls, auditoriums, and other public facilities, parcel pick-up
      stations and landscaped areas. Common Area shall include any other land which
      Landlord, by means of purchase, lease or otherwise, acquires, and which land
      is
      not presently part of the Center, to the extent Landlord designates all or
      any
      portion of such land available as Common Area. 

     

    2.21.
      Competing
      Interest
      is
      defined at Section 10.4. 

     

    2.22.
      Control,
      Controlled
      and
Controls
      mean the
      ownership, directly or indirectly, of at least fifty-one percent (51%) of the
      voting securities of, or possession of the right to vote, in the ordinary
      direction of its affairs, of at least fifty-one percent (51%) of the voting
      interest in, any person or entity. 

     

    2.23.
      Costs
      means
      both Fixed Costs and Variable Costs (or Tenant’s Share of Variable Costs, as the
      context of the sentence, paragraph or Section may require). 

     

    2.24.
      Cumulative
      Basis
      means
      that the stated cap shall be applied on a cumulative and compounding basis.
      For
      example, if the stated cap is three percent (3%), the maximum capped amount
      for
      the first year to which the cap applies shall be one hundred three percent
      (103%) of the amount for the immediately preceding period (annualized if such
      amount is not for a full year), which shall constitute the “Cap Amount” for such
      year; for the second year, the “Cap Amount” shall be equal to one hundred six
      and 9/100ths
      percent
      (106.09%); and for each year after such second year, the Cap Amount shall be
      an
      amount equal to one hundred three percent (103%) of the Cap Amount applicable
      to
      the immediately preceding year. 

     

    2.25.
      Delivery
      Date
      means
      January 1, 2007. 

     

    2.26.
      Effective
      Date
      is
      defined in the preamble to this Lease. 

     

    2.27.
      Intentionally
      Omitted (Form) 

     

    2.28.
      Environmental
      Laws
      means
      any and all federal, state and local laws, regulations, ordinances, codes and
      policies, and any and all judicial or administrative interpretations thereof
      by
      governmental authorities, as now in effect or hereinafter amended or enacted,
      relating to: 

     

    2.28.1.
      Pollution or protection of the environment, natural resources or health and
      safety; including, without limitation, those regulating, relating to, or
      imposing liability for emissions, discharges, releases or threatened releases
      of
      Hazardous Materials into the environment, or otherwise relating to the
      manufacture, processing, distribution, use, treatment, storage, disposal,
      release, transport or handling of Hazardous Materials; and 

     

    2.28.2.
      The use of chemical, electrical, radiological or nuclear processes, radiation,
      sophisticated electrical and/or mechanical equipment, sonar and sound equipment,
      lasers, and laboratory analysis and materials. 

     

    2.29.
      Excluded
      Floor Area
      means
      the total Floor Area of all of the following: Major Occupant Stores, the
      premises of all Occupants occupying between 15,000 and 40,000 square feet of
      Floor Area, all premises having an exterior entrance (but only if the Center
      contains an enclosed mall), movie theatre premises, premises occupied by
      Occupants under pad leases, premises used for educational purposes, premises
      used for office purposes, premises used for restaurants, mezzanines, storage
      areas, premises occupied by Temporary Tenants, Landlord’s management office(s),
      merchants’ association offices, Marketing Service offices, maintenance buildings
      and offices, equipment rooms utilized by Landlord for the maintenance of the
      Common Area, and such facilities and areas the primary purpose of which is
      to
      afford services, convenience or recreation to customers and invitees of the
      Center or for municipal and community purposes, which include, without
      limitation, post offices, security and/or police offices, child care facilities,
      and rooms used for community or public meetings. 

     

    2.30.
      Executive
      Order 13224
      is
      defined at Section 27.25.1.1. 

     

    2.31.
      Expiry
      Date
      means
      the date specified at Section 1.7. 

     

    2.32.
      First
      Fixed Costs Adjustment Date
      is
      defined at Section 1.25. 

     

    2.33.
      Fixed
      Costs
      means
      the annual figure specified at Section 1.25, as the same may be adjusted from
      time-to-time pursuant to this Lease. 

     

    2.34.
      Fixed
      Costs Adjustment Date
      is
      defined at Section 5.7.1. 

     

     

    
      
        
        

      

      
        30

        
          

        

      

      
        
        

      

    

    2.35.
      Fixed
      Minimum Rent
      means
      Annual Fixed Minimum Rent and/or Monthly Fixed Minimum Rent (as the case may
      be). 

     

    2.36.
      Floor
      Area
      means
      (a) with respect to areas in the Center that are available from time-to-time
      for
      the exclusive use and occupancy by an Occupant, Landlord’s calculation of the
      number of square feet of floor area of all floors in such subject space measured
      from the exterior faces of all exterior walls (and from the extensions thereof
      in the case of openings) and from the center line of interior demising walls
      inclusive of the floor area of mezzanines and basements (unless otherwise
      excluded) and (b) with respect to RMUs, Landlord’s calculation of the floor area
      of the footprint of each of the RMUs. Landlord and Tenant stipulate to all
      Floor
      Area calculations made from time-to-time by Landlord. 

     

    2.37.
      Floor
      Area of the Premises
      means
      the number of square feet of Floor Area specified at Section 1.3. 

     

    2.38.
      Force
      Majeure
      is
      defined at Section 27.13. 

     

    2.39.
      Governmental
      Regulations means
      all
      laws, statutes, ordinances, rules, regulations, zoning codes, building codes,
      standards and requirements now or hereafter in force of all governmental and
      quasi-governmental authorities, and of all board of fire insurance underwriters,
      having jurisdiction of the Premises or the Center. 

     

    2.40.
      Grand
      Opening Charge
      is
      defined at Section 5.9. 

     

    2.41.
      Grand
      Opening Event means
      each time after the Effective Date (a) a new Major Occupant initially opens
      its
      premises in the Center to the public or (b) the amount of leasable Floor Area
      in
      the Center increases by 20,000 or more square feet. 

     

    2.42.
      Gross
      Sales
      is
      defined at Section 7.1.1. 

     

    2.43.
      Guarantor(s)
      means
      those person(s) and/or entities whose name(s) appear at Section 1.22.


     

    2.44.
      Hazardous
      Materials
      means
      any and all substances, chemicals, wastes, sewage or other materials that are
      now or hereafter regulated, controlled or prohibited by any Environmental Laws,
      including, without limitation, any (a) substance defined as a “hazardous
      substance”, “extremely hazardous substance”, “hazardous material”, “hazardous
      chemical”, “hazardous waste”, “toxic substance” or “air pollutant” by the
      Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
      Section 9601, et
      seq.;
      the
      Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
      seq.;
      the
      Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et
      seq.;
      the
      Federal Water Pollution Control Act, 33 U.S.C. Section 1251, et
      seq.;
      the
      Clean Air Act, 42 U.S.C. Section 7401, et
      seq.;
      the
      Emergency Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001,
      et
      seq.;
      the
      Toxic Substances Control Act, 15 U.S.C. Section 2601 et
      seq.;
      the
      Occupational Safety and Health Act, 29 U.S.C. Section 651 et
      seq.;
      or the
      Occupational Safety and Health Standards, 25 C.F.R. 1910-1000 et
      seq.,
      or
      regulations promulgated thereunder, all as amended to date and as amended
      hereafter; (b) hazardous substance, hazardous waste, toxic substance, toxic
      waste or hazardous material, waste, chemical or compound described in any other
      Environmental Laws; and 

    (c)
      asbestos, polychlorinated biphenyls, urea formaldehyde insulation, flammable
      or
      explosive or radioactive materials, gasoline, oil, motor oil, waste oil,
      petroleum (including, without limitation, crude oil or any component thereof),
      petroleum-based products, paints, solvents, lead, cyanide, DDT, printing inks,
      acids, pesticides, ammonium compounds, and other regulated chemical products.
      

     

    
      	
              2.45.
                

            	
              HVAC
                means heating, ventilating and air conditioning system(s).
                

            
	
              2.46.
                

            	
              Intentionally
                Omitted (Form) 

            	 	 	 	 	 
	
              2.47.
                

            	
              Improvementsmeans
                all
                existing
                and
                future
                fixtures,
                installations,
                alterations,
                replacements,
                additions, changes and improvements to the Premises.
                

            


    

    


     

    2.48.
      Index
      means
      the
      United States Department of Labor, Bureau of Labor Statistics Consumer Price
      Index for All Urban Consumers, U.S. City Average, Subgroup “All Items”
(1982-84=100). If the foregoing Index is not available, then the successor
      or
      substitute index published by the Bureau of Labor Statistics shall be used
      by
      Landlord as the Index. If the Bureau of Labor Statistics does not publish such
      successor or substitute Index, a reliable governmental or other non-partisan
      publication evaluating substantially the same consumer information shall be
      used
      by Landlord for the Index. If Landlord uses any substitute or successor index
      or
      other publication, the same shall be converted to a basis of 100 if the basis
      used for such other index or publication is less than 100. 

     

    2.49.
      Insured
      Casualty
      means
      damage or destruction the repair of which is fully covered by insurance proceeds
      made available to Landlord for repair and restoration pursuant to any insurance
      policy required to be carried by Landlord under the terms of this Lease.


     

    2.50.
      Insuring
      Party
      is
      defined in Section 8.1.3. 

     

    2.51.
      Involuntary
      Assignment
      means
      any transfer of interest of Tenant in the Lease by operation of law (including,
      without limitation, the transfer of this Lease by testacy or intestacy, or
      in
      any 

     

     

    
      
        
        

      

      
        31

        
          

        

      

      
        
        

      

    

     

    bankruptcy
      or insolvency proceeding) and each of the following acts shall be considered
      an
      Involuntary Assignment: (a) If Tenant is or becomes bankrupt or insolvent,
      makes
      an assignment for the benefit of creditors, or institutes a proceeding under
      any
      bankruptcy law in which Tenant is the bankrupt; or, if Tenant is a partnership
      or consists of more than one (1) person or entity, if any partner of the
      partnership or other such person or entity is or becomes bankrupt or insolvent,
      or makes an assignment for the benefit of creditors; (b) if a writ of attachment
      or execution is levied on this Lease; (c) if, in any proceeding or action to
      which Tenant is a party, a receiver is appointed with authority to take
      possession of the Premises; or (d) there is any assumption, assignment, sublease
      or other transfer under or pursuant to the Bankruptcy Code. 

     

    2.52.
      Intentionally
      Omitted (Form) 

     

    2.53.
      Landlord
      is
      defined in the preamble to this Lease. 

     

    2.54.
      Landlord
      Parties
      means,
      collectively, the Manager, Landlord’s Designees and the respective past, present
      and future partners, officers, directors, shareholders, beneficiaries, trustees,
      employees, agents and independent contractors of both Landlord and Manager.
      

     

    2.55.
      Landlord’s
      Address for Notices
      means
      the address specified at Section 1.17. 

     

    2.56.
      Landlord’s
      Broker(s)
      means
      the broker(s), if any, specified at Section 1.20. 

     

    2.57.
      Landlord’s
      Designees
      means,
      collectively, the Manager, the Mortgagee, any lessors under any ground or
      underlying leases liening the Premises and such person(s) designated by Landlord
      as having an insurable interest in the Premises. 

     

    2.58.
      Landlord’s
      Statement Address means
      the
      address for Landlord set forth at Section 1.24. 

     

    2.59.
      Landlord’s
      Work
      is
      defined at Exhibit
      C.
      

     

    2.60.
      Lease
      is
      defined in the preamble to this Lease. 

     

    2.61.
      Lease
      Year
      means,
      as to the first Lease Year, the period from the Rent Commencement Date through
      the immediately following December 31, and as to each subsequent Lease Year,
      the
      period of January 1 of a given year through the immediately following December
      31 of the same year; however, the last Lease Year shall end upon the Expiry
      Date. 

     

    2.62.
      Major
      Destruction means
      any
      destruction (whether or not an Insured Casualty) (a) to the extent of more
      than
      twenty five percent (25%) of the full replacement cost of any of the Premises,
      the Building, the parking structures located at the Center or the Center, as
      the
      case may be, as of the date of destruction, (b) that will take in excess of
      one
      (1) year to complete repair and restoration, or (c) that occurs at any time
      during the last twenty four (24) months of the Term. 

     

    2.63.
      Major
      Occupant means
      each Occupant (if any) occupying premises containing at least 40,000 square
      feet
      of contiguous Floor Area, and shall include such Occupants who have (if any)
      contiguous stores with different trade names but with direct access between
      or
      among such stores. 

     

    2.64.
      Major
      Occupant Stores
      means
      (a) each of the premises (if any) identified on Exhibit
      A
      as a
“Major Occupant Store” and (b) the premises occupied, or designated for
      occupancy, by Major Occupants. 

     

    2.65.
      Mall
      means
      (a)
      that portion of the Common Area which is contained in the enclosed mall, if
      the
      Center contains an enclosed mall, or (b) the Common Area of the Center, if
      the
      Center does not contain an enclosed mall. 

     

    2.66.
      Manager
      means
      such entity with whom Landlord then has an agreement to manage the Center.
      

     

    2.67.
      Marketing
      Fund Charge
      means
      the annual figure specified at Section 1.14, as the same may be adjusted from
      time-to-time pursuant to the Lease. 

     

    2.68.
      Marketing
      Service means
      the
      promotion and media service directed by Landlord, the purpose of which shall
      be
      to promote the Center in a manner deemed appropriate in Landlord’s reasonable
      judgment and may include, without limitation, marketing sales promotions,
      specified events, community relations, and advertising and promotions through
      television, radio, print, electronic and other media. 

     

    2.69.
      mezzanine
      is
      defined at Exhibit
      C.
      

     

    2.70.
      Monthly
      Base Sales
      means
      the monthly figure specified at Section 1.10, as the same may be adjusted from
      time-to-time pursuant to this Lease. 

     

    2.71.
      Monthly
      Fixed Minimum Rent
      means
      the monthly rent sum specified at Section 1.8, as the same may be adjusted
      from
      time-to-time pursuant to this Lease. 

     

    
      
        
        

      

      
        32

        
          

        

      

      
        
        

      

    

     

    2.72.
      Monthly
      Sales Statement means
      a
      written statement in the form attached as Exhibit
      G
      to the
      Lease certified to be true and correct by an Authorized Officer of Tenant.
      

     

    2.73.
      Mortgage
      and
Mortgagee
      are each
      defined in Section 26.1. 

     

    2.74.
      Notice
      of Transfer Termination
      is
      defined at Section 14.5.1. 

     

    2.75.
      Occupant
      means
      any entity, inclusive of Tenant and exclusive of Landlord (except to the extent
      Landlord operates any retail business open to the public in the Center),
      entitled by any form of instrument to occupy Floor Area in the Center.


     

    2.76.
      OFAC
      is
      defined at Section 27.25.1.1. 

     

    2.77.
      Percentage
      Rent
      means
      the amount, if any, equal to the product obtained by multiplying the Percentage
      Rent Rate by the amount of Gross Sales for each Lease Year during the Term
      that
      is in excess of the Annual Base Sales for each such Lease Year. 

     

    2.78.
      Percentage
      Rent Rate
      means
      the rate specified at Section 1.9. 

     

    2.79.
      Permitted
      Exclusions
      is
      defined at Section 7.1.2. 

     

    2.80.
      Permitted
      Use
      means
      the use specified at Section 1.11. 

     

    2.81.
      Personal
      Property means
      all
      of the following which do not otherwise constitute Attached Fixtures: Tenant’s
      trade fixtures, equipment, appliances, furniture, displays, Storefront Sign,
      other signs, inventory, merchandise and other personal property. 

     

    2.82.
      Plan
      Review Fee
      means
      the sum of $2,500.00; however, (a) if the scope of the plans depicts nothing
      more than painting, carpeting, installing or remodeling the storefront and
      Storefront Sign, such sum shall be in the amount of $1,250.00, and (b) if the
      scope of the plans depicts nothing more than the Storefront Sign, such sum
      shall
      be in the amount of $500.00. The Plan Review Fee shall be subject to annual
      increase (but never a decrease) on each anniversary of the Effective Date as
      follows: The Index published four (4) months prior to the Effective Date
      (“Base
      Year”
for
      purposes of this Section only) shall be compared to the Index published four
      (4)
      months prior to each anniversary of the Effective Date anniversary
      (“Comparison
      Year”
for
      purposes of this Section only), and the Plan Review Fee shall be increased
      by
      the percentage increase, if any, in the Index published for the Comparison
      Year
      over the Index published for the Base Year. 

     

    2.83.
      Plan
      Revisions
      is
      defined at Exhibit
      C.
      

     

    2.84.
      Premises
      means
      that certain space identified at Section 1.2. 

     

    2.85.
      Proposed
      Transfer Date
      means
      the effective date of such Transfer, as specified by Tenant in writing to
      Landlord. 

     

    2.86.
      Radius
      is
      defined at Section 1.16. 

     

    2.87.
      Real
      Estate Taxes means,
      without limitation, all taxes (except for franchise, gift, estate, inheritance
      or net income taxes [unless and then only to the extent that net income taxes
      are a substitute for real estate taxes]), assessments and reassessments (whether
      resulting from any new construction, renovation or replacement of existing
      improvements or a transfer of all or any portion of the Center or otherwise),
      whether special or general, bonds, permit fees, license fees, license taxes,
      levies and penalties imposed, assessed or levied against the Center or any
      portion thereof by any authority having the direct or indirect power to impose,
      assess or levy the same, including, without limitation, any city, county, state
      or federal government or agency thereof, or any school, agricultural, lighting,
      drainage, fire, street, sanitary, community facilities or other improvement
      district thereof; all taxes, fees and/or charges on the operation and use of
      the
      Center or Common Area imposed by any federal, state or local governmental
      entity; all impositions (whether or not such impositions constitute tax receipts
      to governmental agencies) in substitution, partially or totally, of any
      impositions now or previously included within the definition of real estate
      taxes, including, without limitation, those imposed or required by governmental
      agencies to increase tax increments to governmental agencies and for such
      services as fire protection, street, sidewalk and road maintenance, refuse
      removal and/or for other governmental services formerly provided without charge
      to property owners or occupants (it being the intention of Landlord and Tenant
      that all such new and/or increased impositions and all similar impositions
      be
      included within the definition of Real Estate Taxes for purposes of this Lease);
      interest on the foregoing to the extent any of the same are paid in
      installments; and the costs of professionals and counsel to analyze tax bills
      and prosecute any challenges, protests, refunds and appeals. 

     

    2.88.
      Refund
      Date
      means
      the date which is the later of (a) the Expiry Date or date of earlier
      termination of this Lease, or (b) the date Tenant has fully performed all of
      its
      Surrender Obligations under Section 13.1. 

     

    2.89.
      Refurbishment
      is
      defined at Section 12.2. 

     

    2.90.
      Refurbishment
      Notice
      is
      defined at Section 12.2. 

     

     

    
      
        
        

      

      
        33

        
          

        

      

      
        
        

      

    

     

    2.91.
      Reimbursed
      Cost(s)
      means
      Landlord’s cost for performing specific work or services, or providing materials
      on behalf of Tenant, together with interest at the Agreed Rate, calculated
      from
      the date Landlord performs such work or services, or provides such materials,
      until the date that any such cost(s) are paid by Tenant. Tenant shall pay any
      Reimbursed Costs within ten (10) days after Landlord’s written demand therefor.


     

    2.92.
      Relocation
      Notice
      is
      defined at Section 17.5. 

     

    2.93.
      Rent
      means
      Fixed Minimum Rent, Percentage Rent and Additional Rent. 

     

    2.94.
      Rent
      Commencement Date
      means
      the date specified at Section 1.6. 

     

    2.95.
      Rent
      Inquiry Address means
      the
      addresses for Landlord and Tenant, respectively, set forth at Section 1.23.
      

     

    2.96.
      Request
      to Transfer
      is
      defined at Section 14.3. 

     

    2.97.
      Required
      Opening Date
      means
      the date specified at Section 1.5. 

     

    2.98.
      Review
      Fee
      is
      defined at Section 14.11. 

     

    2.99.
      RMUs
      means
      sales areas, display areas, carts, kiosks and other retail merchandising units
      of Occupants located from time-to-time in the Common Area. 

     

    2.100.
      Rules
      means
      such rules and regulations established from time-to-time by Landlord with
      respect to the Center. 

     

    2.101.
      Security
      Deposit
      means
      the sum specified at Section 1.13. 

     

    2.102.
      Storefront
      Sign
      means
      the sign for the Premises facing onto the Mall which shall contain no name
      other
      than the Trade Name. 

     

    2.103.
      Subletting
      and
Sublet
      mean a
      subletting of all or any portion of the Premises or any concession, franchise
      or
      license with respect to the Premises. 

     

    2.104.
      Substitute
      Lease
      is
      defined at Section 17.5. 

     

    2.105.
      Superior
      Agreements
      means
      all mortgages, deeds of trust, ground leases, reciprocal easement agreements,
      declarations, covenants, conditions, restrictions, easements, rights-of-way
      and
      other matters of record (whether placed of record on, prior to, or after the
      Effective Date) affecting all or any portion of the Center, as the same may
      be
      modified, amended and supplemented from time-to-time. 

     

    2.106.
      Surrender
      Obligations
      is
      defined at Section 13.1. 

     

    2.107.
      Taking
      means
      any taking or appropriation for public or quasi-public use by the right of
      eminent domain or otherwise by a taking in the nature of inverse condemnation,
      with or without litigation, or a transfer by agreement in lieu thereof.


     

    2.108.
      Temporary
      Tenants
      means
      all Occupants under leases, licenses or other agreements each with an original
      stated term of twelve (12) months or less. 

     

    2.109.
      Tenant
      is
      defined in the preamble to this Lease. 

     

    2.110.
      Tenant
      Coordinator
      is
      defined at Exhibit
      C.
      

     

    2.111.
      Tenant
      Package
      is
      defined at Exhibit
      C.
      

     

    2.112.
      Tenant
      Parties
      means,
      collectively, Tenant’s Occupants and the respective past and present officers,
      directors, shareholders, invitees, customers, agents, employees and independent
      contractors of both Tenant and Tenant’s Occupants. 

     

    2.113.
      Tenant’s
      Address for Notices
      means
      the address specified at Section 1.18. 

     

    2.114.
      Tenant’s
      Architect
      is
      defined at Exhibit
      C.
      

     

    2.115.
      Tenant’s
      Broker(s)
      means
      the broker(s), if any, specified at Section 1.21. 

     

    2.116.
      Tenant’s
      Contractor
      is
      defined at Exhibit
      C.
      

     

    2.117.
      Tenant’s
      Occupants
      means
      all concessionaires, licensees, subtenants, assignees and others holding any
      rights to, or interest in, any part of the Premises under Tenant. 

     

    2.118.
      Tenant’s
      Receipts
      is
      defined at Section 7.2. 

     

     

    
      
        
        

      

      
        34

        
          

        

      

      
        
        

      

    

    2.119.
      Tenant’s
      Records
      is
      defined at Section 7.2. 

     

    2.120.
      Tenant’s
      Representative
      is
      defined at Exhibit
      C.
      

     

    2.121.
      Tenant’s
      Share
      means a
      fraction, the numerator of which is the Floor Area of the Premises and the
      denominator of which is the Floor Area of the Center (inclusive of the Premises,
      but exclusive of the Excluded Floor Area), which is from time-to-time occupied
      and open for business. 

     

    2.122.
      Tenant’s
      Work
      is
      defined at Exhibit
      C.
      

     

    2.123.
      Term
      means
      the period of time specified at Section 1.4. 

     

    2.124.
      Trade
      Name
      means
      the name(s) specified at Section 1.12. 

     

    2.125.
      Transfer
      and
Transferring
      mean
      either an Assignment or a Subletting or both, as the case may be. 

     

    2.126.
      Transferee
      means
      all of the following: Concessionaire(s), franchisee(s), licensee(s), assignee(s)
      and subtenant(s), as the case may be. 

     

    2.127.
      Unamortized
      Amount
      shall
      mean an amount equal to the remaining unamortized net cost paid by Tenant for
      Improvements (less all amounts either [a] paid by Landlord toward such
      Improvements, or [b] spent by Tenant on Personal Property) amortized on a
      straight line basis over the initial term of the Lease. 

     

    2.128.
      Uninsured
      Casualty
      means
      damage or destruction resulting from any flood, earthquake, act of war, act
      of
      terrorism, nuclear reaction, nuclear radiation or radioactive contamination,
      or
      any other casualty of any kind or nature whatsoever which is not an Insured
      Casualty. 

     

    2.129.
      Utilities
      means
      all water, gas, sewer, heat, electricity, steam, chilled water, conditioned
      water, hot water, sprinklers, fire-safety systems, lighting, power, HVAC,
      telephone service and other telecommunications services, sewer service, refuse
      removal service and all other utilities and related services. 

     

    2.130.
      Utility
      Facilities means
      any
      and all systems, machinery, facilities, installations, supply lines,
      transformers, pipes, conduits, ducts, penetrations, components, appurtenances
      and equipment, located on or at the Center, for the generation or supply of
      any
      Utilities (including, without limitation, any central plants and individual
      HVAC
      units owned or maintained by Landlord). 

     

    2.131.
      Vacation
      is
      defined at Section 19.1.3. 

     

    2.132.
      Variable
      Costs
      means
      Real Estate Taxes together with an Administrative Charge calculated on Real
      Estate Taxes. 

     

     

    
      
        
        

      

      
        35

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
      E 

     

    CENTER
      RIDER 

     

    (Arrowhead
      Towne Center) 

    1.
      GENERAL PROVISIONS 

     

    1.1.
      Purpose.
      This
Exhibit
      E
      sets
      forth certain provisions particular to the Center and the state in which the
      Premises are located. 

     

    1.2.
      Prevailing
      Provisions.
      If
      there are any inconsistencies between the Lease and the provisions of this
      Exhibit
      E,
      the
      provisions of this Exhibit
      E
      shall
      prevail. 

     

    1  Definitions.
      Unless
      otherwise expressly defined in this Exhibit
      E,
      all
      capitalized words shall have the meanings specified in the Lease. 

    2  AMENDMENT
      AND SUPPLEMENTS 

    


    The
      following Articles and Sections of the Lease are amended and supplemented as
      follows: 

     

    2.1.
      Article
      5 (Rent) is
      amended by adding to the Section captioned “Marketing Fund Charge”, the
      following: 

     

    If
      Landlord, at its sole option, produces or causes to be produced a direct mail,
      broadcast, print or other advertising device featuring tenants of the Center,
      then, if requested by Landlord from time-to-time for any given Lease Year,
      Tenant shall participate in such advertising at least twice during such Lease
      Year (or as often as the same is produced, if less than twice during such Lease
      Year). In no event, however, shall the foregoing provisions be construed to
      obligate Landlord for any given Lease Year to produce or cause to be produced
      any such advertising. Tenant shall pay to Landlord, in addition to all other
      Rent, the cost of each such advertisement within thirty (30) days following
      receipt of an invoice therefor, which cost shall be reasonably determined by
      Landlord from time-to-time based upon Landlord’s reasonably anticipated costs
      and expenses incurred in connection therewith. If Landlord implements a program
      and/or system of gift certificates or similar program and/or system, Tenant
      shall (a) participate therein, (b) utilize any equipment and/or software
      necessary to implement the same, (c) be responsible for any costs associated
      therewith and (d) execute any necessary documentation to effectuate the program.
      

     

    2.2.
      Section
      20.1.1 (Continue Lease)
      is
      deleted in its entirety and the following substituted in lieu thereof:


     

    20.1.1
      Terminate
      Possession Without Terminating the Lease.
      Landlord may recover possession of the Premises after Tenant’s default, without
      terminating the Lease, and recover any and all Rents due under the Lease
      throughout the remaining Term, subject only to Landlord’s duty to mitigate
      damages. In such event, Landlord may, in its sole and absolute discretion,
      recover any and all amounts due under the Lease, from time-to-time, until the
      expiration of the Term. Nevertheless, Landlord expressly reserves the right
      to
      terminate the Lease at any time. 

     

    2.3.
      Section
      20.1.2 (Terminate Lease)
      is
      amended by deleting the caption “Terminate Lease” and substituting in lieu
      thereof the caption “Terminate Possession and the Lease”. 

     

    2.4.
      Article
      27 (Miscellaneous)
      is
      amended be adding the following new Sections to the end thereof: 

     

    No
      Dual Agency of Landlord’s Broker.
      Landlord hereby discloses to Tenant that Westcor Partners, L.L.C., an Arizona
      limited liability company, and Macerich Westcor Management LLC, a Delaware
      limited liability company, are both licensed real estate brokers in the State
      of
      Arizona, one or both of which have acted as Landlord’s sole agents in connection
      with the leasing of the Premises to Tenant pursuant to the terms and provisions
      of the Lease, and Landlord hereby expressly agrees to pay all brokerage
      commissions payable, if any, to such licensee(s). In that regard, or in the
      event Landlord is alternatively, or in addition thereto, represented by any
      other person, corporation, partnership or other entity holding a real estate
      license, Tenant hereby expressly acknowledges and agrees that (a) such
      licensee(s) shall, for all purposes hereunder or at law or in equity, be acting
      as agent(s) of Landlord only and (b) no dual agency shall be deemed to exist
      or
      to have been created by any such licensee’s actions, statements, warranties or
      representations (whether verbal or written) or by omission thereof, so that
      under no circumstances shall any such licensee(s) ever be deemed in any way
      to
      be the agent of Tenant in connection with the leasing of the Premises to Tenant
      pursuant to the terms and provisions of the Lease. Tenant hereby expressly
      waives any and all claims that such dual agency exists and further acknowledges
      and agrees that there shall be 

     

     

    
      
        
        

      

      
        36

        
          

        

      

      
        
        

      

    

     

    absolutely
      no liability on the part of Landlord or any such agent(s) or licensee(s) of
      Landlord arising as a result of any such claim, notwithstanding any action,
      statement, warranty or representation of any kind (whether written or oral)
      to
      the contrary made to Tenant by such agent(s) or licencee(s). For purposes of
      this Section, the terms “licensee(s)” and “agents(s)” shall be deemed to also
      include subagents and employees of such licensee(s), agent(s) or subagent(s).
      

     

    2.5.
      Exhibit
      D (Excluded Floor Area).
      The
      defined term “Excluded Floor Area” is modified by the addition of the following
      language to the end thereof: 

     

    Notwithstanding
      anything to the contrary contained herein, Excluded Floor Area shall also mean
      the Floor Area of all restaurants. 

     

     

    
      
        
        

      

      
        37

        
          

        

      

      
        
        

      

    

     

     

    EXHIBIT
      F 

     

    Exhibit
      F has been Intentionally Omitted 

     

     

     

    
      
        
        

      

      
        38

        
          

        

      

      
        
        

      

    

     

     

    EXHIBIT
      F
      - PAGE 1 

    EXHIBIT
      G MONTHLY AND ANNUAL SALES STATEMENT FORM 

     

    Center:
      

     

    
      	 	
              Store
                Name/Number: 

            
	 	
              CERTIFIED
                GROSS SALES 

            	
              CERTIFIED
                PERMITTED EXCLUSIONS 

            
	
              January
                

            	 	 
	
              February
                

            	 	 
	
              March
                

            	 	 
	
              April
                

            	 	 
	
              May
                

            	 	 
	
              June
                

            	 	 
	
              July
                

            	 	 
	
              August
                

            	 	 
	
              September
                

            	 	 
	
              October
                

            	 	 
	
              November
                

            	 	 
	
              December
                

            	 	 


    

    


    Details
      have been attached explaining Permitted Exclusions as required by the applicable
      provisions of the Lease. 

     

    I
      certify
      that the sales indicated above are true and correct. 

     

    
      	Name:
              	 	 	 
	Title:
              	 	 	 
	
              Authorized
                Signatory 

            	 	 	 


    

     

     

     

    
      
        
        

      

      
        39

        
          

        

      

      
        
        

      

    

     

    GUARANTEE
      OF LEASE 

     

    THIS
      GUARANTEE OF LEASE
      (“Guarantee”) is made as of this day ofby Tradeshow Marketing Co Ltd., a Nevada
      corporation (collectively, “Guarantors” and individually, each a “Guarantor”),
      whose addresses are set forth in Section 9 hereof, in favor of New River
      Associates (“Landlord”), having an office at 401 Wilshire Boulevard, Suite 700,
      Santa Monica, California 90407. 

     

    WHEREAS,
      Landlord and SANDSTROM As Seen On TV Franchising Company, a Nevada corporation
      (“Tenant”) desire to enter into that certain Lease Agreement made as of even
      date herewith (“Lease”), concerning the premises commonly referred to as space
      number 2136 (“Premises”) in the commercial project located at Arrowhead Towne
      Center (“Center”) in the City of Glendale, County of Maricopa, State of Arizona;


     

    WHEREAS,
      Guarantors have a financial interest in Tenant; and 

     

    WHEREAS,
      Landlord would not execute the Lease if Guarantors did not execute and deliver
      to Landlord this Guarantee. 

     

    NOW,
      THEREFORE,
      for and
      in consideration of the execution of the foregoing Lease by Landlord and as
      a
      material inducement to Landlord to execute the Lease, Guarantors hereby jointly,
      severally, and absolutely, presently, continually, unconditionally and
      irrevocably guarantee the prompt payment by Tenant of all rentals and all other
      sums payable by Tenant under the Lease and the faithful and prompt performance
      by Tenant of each and every one of the terms, conditions and covenants of the
      Lease to be kept and performed by Tenant, and further agree as follows:


     

    1  It
      is
      specifically agreed and understood that the terms, covenants and conditions
      of
      the Lease may be altered, affected, modified, amended, compromised, released
      or
      otherwise changed by agreement between Landlord and Tenant, or by course of
      conduct and each Guarantor does guarantee and promise to perform all of the
      obligations of Tenant under the Lease as so altered, affected, modified,
      amended, compromised, released or changed and the Lease may be assigned by
      or
      with the consent of Landlord or any assignee of Landlord without consent or
      notice to Guarantors and that this Guarantee shall thereupon and thereafter
      guarantee the performance of the Lease as so changed, modified, amended,
      compromised, released, altered or assigned. 

    2  This
      Guarantee shall not be released, modified or affected by failure or delay on
      the
      part of Landlord to enforce any of the rights or remedies of Landlord under
      the
      Lease, whether pursuant to the terms thereof or at law or in equity, or by
      any
      release of any person liable under the terms of the Lease (including, without
      limitation, Tenant) or any other Guarantor, including without limitation, any
      other Guarantor named herein, from any liability with respect to Guarantors’
obligations hereunder. 

    3  Each
      Guarantor’s liability under this Guarantee shall continue until all rents due
      under the Lease have been paid in full in cash and until all other obligations
      to Landlord have been satisfied, and shall not be reduced by virtue of any
      payment by Tenant of any amount due under the Lease. If all or any portion
      of
      Tenant’s obligations under the Lease is paid or performed by Tenant, the
      obligations of Guarantor hereunder shall continue and remain in full force
      and
      effect in the event that all or any part of such payment(s) or performance(s)
      is
      avoided or recovered directly or indirectly from Landlord as a preference,
      fraudulent transfer or otherwise. 

    4  Each
      Guarantor warrants and represents to Landlord that such Guarantor now has and
      will continue to have full and complete access to any and all information
      concerning the Lease, the value of the assets owned or to be acquired by Tenant,
      Tenant’s financial status and its ability to pay and perform the obligations
      owed to Landlord under the Lease. Each Guarantor further warrants and represents
      that such Guarantor has reviewed and approved copies of the Lease and is fully
      informed of the remedies Landlord may pursue, with or without notice to Tenant,
      in the event of default under the Lease. So long as any of Guarantors’
obligations hereunder remains unsatisfied or owing to Landlord, each Guarantor
      shall keep fully informed as to all aspects of Tenant’s financial condition and
      the performance of said obligations. 

    5  Each
      Guarantor hereby covenants and agrees with Landlord that if a default shall
      at
      any time occur in the payment of any sums due under the Lease by Tenant or
      in
      the performance of any other obligation of Tenant under the Lease, such
      Guarantor shall and will forthwith upon demand pay such sums, and any arrears
      thereof, to Landlord in legal currency of the United States of America for
      payment of public and private debts, and take all other actions necessary to
      cure such default and perform such obligations of Tenant. 

    6  The
      liability of Guarantors under this Guarantee is a guarantee of payment and
      performance and not of collectibility, and is not conditioned or contingent
      upon
      the genuineness, validity, regularity or enforceability of the Lease or the
      pursuit by Landlord of any remedies which it now has or may hereafter have
      with
      respect thereto, at law, in equity or otherwise. 

    7  To
      the
      extent permitted by law, each Guarantor hereby waives and agrees not to assert
      or take advantage of: (a) All notices to Guarantor (or any of them), to Tenant,
      or to any other person, including, but not limited to, notices of the acceptance
      of this Guarantee or the creation, renewal, 

    


     

    
      
        
        

      

      
        40

        
          

        

      

      
        
        

      

    

    extension,
      assignment, modification or accrual of any of the obligations owed to Landlord
      under the Lease and, except to the extent set forth in Section 9 hereof,
      enforcement of any right or remedy with respect thereto, and notice of any
      other
      matters relating thereto; (b) notice of acceptance of this Guarantee; (c) demand
      of payment, presentation and protest; (d) demand for performance, (e) any right
      to require Landlord to apply to any default any security deposit or other
      security it may hold under the Lease; (f) any right or defense that may arise
      by
      reason of the incapability, lack or authority, death or disability of Tenant
      or
      any other person; (g) any statute of limitations affecting the enforcement
      of
      this Guarantee; (h) all principles or provisions of law which conflict with
      the
      terms of this Guarantee and 

    (i)
      any
      right to enter upon or take possession of the Premises or to cure any default
      on
      behalf of Tenant. Moreover, each Guarantor agrees that such Guarantor’s
      obligations shall not be affected by any circumstances which constitute a legal
      or equitable discharge of a guarantor or surety. 

     

    8.
      Each
      Guarantor agrees that Landlord may enforce this Guarantee without the necessity
      of proceeding against Tenant or any other guarantor, including, without
      limitation, any other Guarantor named herein. Each Guarantor hereby waives
      the
      right to require Landlord to proceed against Tenant, to proceed against any
      other guarantor, including, without limitation, any other Guarantor named
      herein, to exercise any right or remedy under the Lease or to pursue any other
      remedy or to enforce any other right. 

     

    9.
      Each
      Guarantor agrees: 

     

    9.1.
      That
      nothing contained herein shall prevent Landlord from suing on the Lease or
      from
      exercising any rights available to it thereunder and that the exercise of any
      of
      the aforesaid rights shall not constitute a legal or equitable discharge of
      Guarantor. 

     

    9.2.
      That
      such Guarantor shall have no right of subrogation against Tenant or any right
      of
      contribution against any other Guarantor hereunder unless and until all amounts
      due under the Lease have been paid in full and all other obligations under
      the
      Lease have been satisfied. Each Guarantor further agrees that, to the extent
      the
      waiver of such Guarantor’s rights of subrogation and contribution as set forth
      herein is found by a court of competent jurisdiction to be void or voidable
      for
      any reason, any rights of subrogation such Guarantor may have against Tenant
      shall be junior and subordinate to any rights Landlord may have against Tenant,
      and any rights of contribution such Guarantor may have against any other
      Guarantor shall be junior and subordinate to any rights Landlord may have
      against such other Guarantor. 

     

    9.3.
      To
      the extent any dispute exists at any time between or among any of the Guarantors
      as to any Guarantor’s right to contribution or otherwise, to indemnify, defend
      and hold Landlord harmless from and against any loss, damage, claim, demand,
      cost or any other liability (including, without limitation, reasonable
      attorneys’ fees and costs) Landlord may suffer as a result of such dispute.


     

    9.4.
      The
      obligations of each Guarantor under this Guarantee shall not be altered, limited
      or affected by any case, voluntary or involuntary, involving the bankruptcy,
      insolvency, receivership, reorganization, liquidation or arrangement of Tenant
      or any defense which Tenant may have by reason of order, decree or decision
      of
      any court or administrative body resulting from any such case. Landlord shall
      have the sole right to accept or reject any plan on behalf of each Guarantor
      proposed in such case and to take any other action which such Guarantor would
      be
      entitled to take, including, without limitation, the decision to file or not
      file a claim. Each Guarantor acknowledges and agrees that any payment which
      accrues with respect to Tenant’s obligations under the Lease (including, without
      limitation, the payment of rent) after the commencement of any such proceeding
      (or, if any such payment ceases to accrue by operation of law by reason of
      the
      commencement of such proceeding, such payment as would have accrued if said
      proceedings had not been commenced) shall be included in Guarantors’ obligations
      hereunder because it is the intention of the parties that said obligations
      should be determined without regard to any rule or law or order which may
      relieve Tenant of any of its obligations under the Lease. Each Guarantor hereby
      permits any trustee in bankruptcy, receiver, debtor-in-possession, assignee
      for
      the benefit of creditors or similar person to pay Landlord, or allow the claim
      of Landlord in respect of, any such payment accruing after the date on which
      such proceeding is commenced. Each Guarantor hereby assigns to Landlord such
      Guarantor’s right to receive any payments from any trustee in bankruptcy,
      receiver, debtor-in-possession, assignee for the benefit of creditors or similar
      person by way of dividend, adequate protection payment or otherwise.


     

    9.5.
      Any
      notice, statement, demand, consent, approval or other communication required
      or
      permitted to be given, rendered or made by either party to the other, pursuant
      to this Guarantee or pursuant to any applicable law or requirement of public
      authority, shall be in writing (whether or not so stated elsewhere in this
      Guarantee) and shall be deemed to have been properly given, rendered or made
      only if hand-delivered or sent by first-class mail, postage pre-paid, addressed
      to the other party at its respective address set forth below, and shall be
      deemed to have been given, rendered or made on the day it is hand-delivered
      or
      one day after it is mailed, unless it is mailed outside of the county in which
      the Center is located, in which case it shall be deemed to have been given,
      rendered or made on the third business day after the day it is mailed. By giving
      notice as provided above, either party may designate a different address for
      notices, statements, demands, consents, approvals or other communications
      intended for it. 

     

     

    
      
        
        

      

      
        41

        
          

        

      

      
        
        

      

    

     

     

    
      	 To Guarantors: 	2498
              West 41st
              Avenue, Box 137	 	 
	 	Vancouver, British Columbia V6M 4B8
              	 	 
	 To Landlord:	
              New River Associates

              j
                Macerich Company

            	 	 
	 	P.O. Box 2172 401 Wilshire Boulevard,
              Suite
              700 Santa Monica, California 90407 Attention: Legal Department 	 	 


    

     

     

    10.
      Each
      Guarantor represents and warrants to Landlord as follows: 

     

    10.1.
      No
      consent of any other person, including, without limitation, any creditors of
      such Guarantor, and no license, permit, approval or authorization of, exemption
      by, notice or report to, or registration, filing or declaration with, any
      governmental authority is required by such Guarantor in connection with this
      Guarantee or the execution, delivery, performance, validity or enforceability
      of
      this Guarantee and all obligations required hereunder. This Guarantee has been
      duly executed and delivered by such Guarantor, and constitutes the legally
      valid
      and binding obligation of such Guarantor enforceable against such Guarantor
      in
      accordance with its terms. 

     

    10.2.
      The
      execution, delivery and performance of this Guarantee will not violate any
      provision of any existing law or regulation binding on such Guarantor, or any
      order, judgment, award or decree of any court, arbitrator or governmental
      authority binding on such Guarantor, or of any mortgage, indenture, lease,
      contract or other agreement, instrument or undertaking to which such Guarantor
      is a party or by which such Guarantor or any of such Guarantor’s assets may be
      bound, and will not result in, or require, the creation or imposition of any
      lien on any of such Guarantor’s property, assets or revenues pursuant to the
      provisions of any such mortgage, indenture, lease, contract or other agreement,
      instrument or undertaking. 

     

    1  The
      obligations of Tenant under the Lease to execute and deliver estoppel
      statements, as therein provided, shall be deemed to also require the Guarantors
      hereunder to do and provide the same relative to Guarantors. 

    2  This
      Guarantee shall be binding upon each Guarantor, such Guarantor’s heirs,
      representatives, administrators, executors, successors and assigns and shall
      inure to the benefit of and shall be enforceable by Landlord, its successors,
      endorsees and assigns. Any married person executing this Guarantee agrees that
      recourse may be had against community assets and against his or her separate
      property for the satisfaction of all obligations herein guaranteed. As used
      herein, the singular shall include the plural, and the masculine shall include
      the feminine and neuter and vice versa, if the context so requires.


    3  The
      term
“Landlord” whenever used herein refers to and means the Landlord specifically
      named in the Lease and also any assignee of the said Landlord, whether by
      outright assignment or by assignment for security, and also any successor to
      the
      interest of the said Landlord or of any assignee in the Lease or any part
      thereof, whether by assignment or otherwise. So long as the Landlord’s interest
      in or to Premises (as that term is used in the Lease) or the rents, issues
      and
      profits therefrom, or in, to or under the Lease, are subject to any mortgage
      or
      deed of trust or assignment for security, no acquisition by Guarantors of the
      Landlord’s interest in the Premises or under the Lease shall affect the
      continuing obligations of Guarantors under this Guarantee, which obligations
      shall continue in full force and effect for the benefit of the mortgagee,
      beneficiary, trustee or assignee under such mortgage, deed of trust or
      assignment, of any purchaser at sale by judicial foreclosure or under private
      power of sale, and of the successors and assigns of any such mortgagee,
      beneficiary, trustee, assignee or purchaser. 

    4  The
      term
“Tenant” whenever used herein refers to and means the Tenant in the Lease
      specifically named and also any assignee of the said Lease or sublessee of
      the
      Premises and also any successor to the interests of said Tenant, assignee or
      sublessee of such Lease or Premises or any part thereof, whether by assignment,
      sublease or otherwise. 

    5  In
      the
      event of any dispute or litigation regarding the enforcement or validity of
      this
      Guarantee, Guarantors shall be obligated to pay all charges, costs and expenses
      (including, without limitation, reasonable attorneys’ fees) incurred by
      Landlord, whether or not any action or proceeding is commenced regarding such
      dispute and whether or not such litigation is prosecuted to judgment.


    6  This
      Guarantee shall be governed by and construed in accordance with the laws of
      the
      state in which the Center is located, and in a case involving diversity of
      citizenship, shall be litigated in and subject to the jurisdiction of the courts
      of the state in which the Center is located. 

    7  Every
      provision of this Guarantee is intended to be severable. In the event any term
      or provision hereof is declared to be illegal or invalid for any reason
      whatsoever by a court of competent jurisdiction, such illegality or invalidity
      shall not affect the balance of the terms and provisions hereof, which terms
      and
      provisions shall remain binding and enforceable. 

    8  This
      Guarantee may be executed in any number of counterparts each of which shall
      be
      deemed an original and all of which shall constitute one and the same Guarantee
      with the same effect as if all parties had signed the same signature page.
      Any
      signature page of this Guarantee may be attached
      from any counterpart of this Guarantee and re-attached to any other counterpart
      of this Guarantee identical in form hereto but having attached to it one or
      more
      additional signature pages.

    


     

    
      
        
        

      

      
        42

        
          

        

      

      
        
        

      

    

     

     

    1  No
      failure or delay on the part of Landlord to exercise any power, right or
      privilege under this Guarantee shall impair any such power, right or privilege,
      or be construed to be a waiver of any default or an acquiescence therein, nor
      shall any single or partial exercise of such power, right or privilege preclude
      other or further exercise thereof or of any other right, power or privilege.
      

    2  This
      Guarantee shall constitute the entire agreement between each Guarantor and
      the
      Landlord with respect to the subject matter hereof. No provision of this
      Guarantee or right of Landlord hereunder may be waived nor may any Guarantor
      be
      released from any obligation hereunder except by a writing duly executed by
      an
      authorized officer, director or trustee of Landlord. 

    3  The
      liability of each Guarantor and all rights, powers and remedies of Landlord
      hereunder and under any other agreement now or at any time hereafter in force
      between Landlord and such Guarantor relating to the Lease shall be cumulative
      and not alternative and such rights, powers and remedies shall be in addition
      to
      all rights, powers and remedies given to Landlord by law. 

    4  LANDLORD
      AND EACH GUARANTOR EACH HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING
      OR
      COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER WHATSOEVER
      ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS GUARANTEE, INCLUDING ANY
      EMERGENCY AND OTHER STATUTORY REMEDY WITH RESPECT THERETO. LANDLORD AND EACH
      GUARANTOR ALSO AGREES THAT THE VENUE OF ANY SUCH ACTION, PROCEEDING OR
      COUNTERCLAIM SHALL BE IN THE CITY, COUNTY AND STATE IN WHICH THE CENTER IS
      LOCATED. 

    


    IN
      WITNESS WHEREOF,
      Guarantors have executed this Guarantee as of the day and year first above
      written. 

     

     

     

    
      	 	 	
              Tradeshow Marketing Co Ltd.,
                

              a
                Nevada corporation 

            	 
	 	 	 	 
	 By: Name: 	 	 	 
	 Its: President 	 	 	 
	 By:
              Name: 	 	 	 
	 Its: Vice President 	 	 	 


    

     

     

    
      	STATE
              OF NEVADA 	 )	 
	 	
              )
                

            	
              SS.
                

            
	
              COUNTY
                OF 

            	
              )
                

            	 


    

    


    On
      before
      me, , a Notary Public in and or for said State, personally appeared
      __________________ and _________________ personally known to me (or proved
      to me
      on the basis of satisfactory evidence) to be the persons whose names are
      subscribed to the within instrument and acknowledged to me that they executed
      the same in their authorized capacities, and that by their signatures on the
      instrument the persons, or the entity upon behalf of which the persons acted,
      executed the instrument. 

     

    WITNESS
      my hand
      and official seal. 

     

    Notary
      Public 

    SEAL
      

     

    43