HomeMy WebLinkAbout00-00679
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HAMPDEN CENTER, INC.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff
CIVIL ACTION - LAW
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v.
NO. c1000 - 1-1'1
D & D DEVELOPMENT CORPORATION
t/a SIGNS NOW,
Defendant
CONFESSION OF JUDGMENT FOR MONEY
AND POSSESSION OF REAL PROPERTY
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the Warrant of
Attorney, the original or a copy of which is attached to the
Complaint filed in this action, I appear for Defendant, D & D
Development Corporation t/a Signs Now, and confess judgment in
favor of Plaintiff and against Defendant as follows:
Amount Past Due
Unpaid Balance of Instrument
Attorneys Fees
Less Security Deposit
$ 10,106.68
$ 53,579.23
$ 3,184.30
($ 1,666.67)
TOTAL
$ 65,203.54
Date: 2/3/00
0.
W. Allshouse,
rney ID #78014
219 ine Street
HarrI~burg, PA 17101
(717)236-5000
Attorney for Defendant
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HAMPDEN CENTER, INC.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff
NO.
v.
CIVIL ACTION - LAW
D & D DEVELOPMENT CORPORATION
t/a SIGNS NOW,
Defendant
CONFESSION OF JUDGMENT FOR MONEY
AND POSSESSION OF REAL PROPERTY
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the Warrant of
Attorney, the original or a copy of which is attached to the
Complaint filed in this action, I appear for the Defendant and
confess judgment in favor of Plaintiff and against Defendant for
the possession of real property as follows:
Space #B2
Hampden Centre Shopping Center
4830 Carlisle pike
Mechanicsburg
Hampden Township
Cumberland County
Pennsylvania
Date: 2/3/00
.~\
W, Allshouse, E
ney ID #78014
219 ine Street
Harri burg, PA 17101
(717) 236-5000
Attorney for Defendant
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HAMPDEN CENTER, INC.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff
NO.
v,
CIVIL ACTION - LAW
D & D DEVELOPMENT CORPORATION
t/a SIGNS NOW,
Defendant
CONFESSION OF JUDGMENT FOR MONEY
AND POSSESSION OF REAL PROPERTY
NOTICE OF JUDGMENT BY CONFESSION
To: D & D Development Corporation t/a Signs Now, Defendant
You are hereby notified that on ~~ ~ ' 2000,
the following judgment was entered against you in the above
captioned case.
Judgment by Confession in the amount $65.203,54 and for
possession of the real property located at Space B2 in the
Hampden Centre Shopping Center, Hampden Centre Shopping Center,
4830 Carlisle Pike, Mechanicsburg, Hampden Township, Cumberland
County, Pennsylvania.
Date:~~ 1..1 .)r:ll:>b
I
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' ( rCithonotary
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
P.O. BOX 186
100 SOUTH STREET
HARRISBURG, PA 17101
(800) 692-7375
I hereby certify that the following is the address of the
defendant:
D & D Development Corporation t/a Signs Now
c/o David Allen Snively, President
4910 Carlisle pike Suite 102
Mechanicsburg, PA 17055
Date: :2/3/oc)
),Cf
W. Allshouse,
rney ID #78014
219 pine.Street
Harr'sburg, PA 17101
(717) 236-5000
Attorney for Plaintiff
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A: D & D Development Corporation t/a Signs Now, Defendant
Por este medio sea avisado que en e1 dia
de 1999, un fallo ha sido anotado
caso mencionado en e1 epigrafe.
de
en contra suy en
Fecha: e1 dia
de
de 2000.
protonotario
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION
SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
P.O. BOX 186
100 SOUTH STREET
HARRISBURG, PA 17101
(800) 692 -73 75
Por este medio certifico que 10 siguiente es 1a direccion
del demandado:
D & D Development Corporation t/a Signs Now
c/o David Allen Snively, President
4910 Carlisle Pike Suite 102
Mechanicsburg, PA 17055
Date: 2/3/00
W. Allshouse,
ney ID #78014
219 ine Street
Harriburg, PA 17101
(717) ~36-5000
HAMPDEN CENTER, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO.
v.
CIVIL ACTION - LAW
D & D DEVELOPMENT CORPORATION
t/a SIGNS NOW,
Defendant
CONFESSION OF JUDGMENT FOR MONEY
AND POSSESSION OF REAL PROPERTY
COMPLAINT FOR CONFESSION OF JUDGMENT
AND NOW, comes Plaintiff, Hampden Center, Inc., by and
through its attorneys, the Law Offices Stephen C. Nude1, PC, and
respeCtfully files this Complaint for Judgment by Confession as
follows.
1. Plaintiff, Hampden Center, Inc., is a Pennsylvania
corporation, with an address of 444 Park Avenue South, Suite 302,
New York, New York 10016 ("HAMPDEN CENTER"),
2. Plaintiff is the owner of real property known as
Hampden Centre Shopping Center, 4910 Carlisle Pike,
Mechanicsburg, Hampden Township, Cumberland County, Pennsylvania
(" SHOPPING CENTER") .
3. Defendant, D & D Development Corporation t/a Signs Now,
is a Pennsylvania corporation with a registered address of 4910
Carlis1e Pike, Suite 102, Mechanicsburg, Cumberland County,
Pennsylvania 17055 (nD & D DEVELOPMENT CORPORATIONn) .
4. On or about July 17, 1997, D & D Development
Corporation, as Tenant, and Hampden Center, Inc., as Landlord,
executed an Agreement of Lease ("LEASE") for 2,400 square feet
of commercial space known as Space B2 located in the Shopping
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Center ("PREMISES"). A copy of the Lease is attached hereto and
is incorporated herein as "Exhibit A" as if set forth at length.
5. The Lease has not been assigned.
6. The initial term of the Lease was to expire in
November, 2002.
7. Defendant is in default under the terms of the Lease as
hereinafter set forth and the Lease has been terminated.
8. Notice of default is not required by the terms of the
Lease.
9. No judgment has been entered on the Lease in any
jurisdiction prior to this action.
10. Judgment is not being entered by confession against a
natural person in connection with a residential lease.
COUNT I: CONFESSION OF JUDGMENT FOR MONEY
11. The averments set forth in paragraphs 1 through 10 are
incorporated herein by reference as if set forth at length.
12. The Lease provides, inter alia, for the payment of base
rent ("RENT"), promotional fund contributions, a pro rata share
of common area maintenance expenses, insurance and taxes
("ADDITIONAL RENT") and, in the event of a default, interest,
costs of suit and attorneys fees.
13, Defendant is in default under the terms and conditions
of the Lease in that Defendant has failed to pay Rent and
Additional Rent when due and owing for the months of September
1998, through December, 1999. The amount past due and owing by
Defendant is $10,106.68. A true and correct copy of a Tenant
I
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Ledger attached hereto and made a part hereof as "Exhibit B" more
fully sets forth the debt of Defendant.
14. The Lease provides, inter alia, that all amounts unpaid
by Defendant shall bear interest at the rate of 18% percent per
annum, but not in excess of the maximum legal rate.
15, The Lease provides, inter alia, that in the event of a
default by Defendant, Plaintiff may accelerate the Rent and
Additional Rent through the end of the Lease Term.
16. The Lease provides, inter alia, that, in the event of a
default by Defendant, Plaintiff may confess judgment against D &
D Development Corporation including attorneys fees in the amount
of five percent (5%) of the amount claimed.
17. Defendant has paid to Plaintiff a security deposit in
the amount of $1,666.67.
18. Based upon the foregoing, Defendant is liable to
Plaintiff as follows:
Amount Past Due
Unpaid Balance of Instrument
Attorneys Fees
Less Security Deposit
$ 10,106.68
$ 53,579.23
$ 3,184.30
($ 1,666.67)
TOTAL
$ 65,203.54
WHEREFORE, Plaintiff demands judgment in the amount of
$65,203.54 in accordance with the terms of the Lease as
authorized by the Warrant appearing in the attached Lease plus
interest, costs of suit and attorneys fees.
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COUNT II: CONFESSION OF JUDGMENT FOR
POSSESSION OF REAL PROPERTY
19. The averments set forth in paragraphs 1 through 18 are
incorporated herein by reference as if set forth at length.
20. Defendant has defaulted under the terms and conditions
of the Lease by failing to pay rent and other charges as set
forth in Count I of this Complaint.
21. The Lease provides, inter alia, that in the event of a
default by Defendant, Plaintiff may confess judgment against
Defendant for possession of the Premises.
22. The Lease provides, inter alia, that in the event of a
default by Defendant, Defendant is liable for Plaintiff's
attorneys fees incurred to regain possession of the Premises.
WHEREFORE, Plaintiff demands judgment for possession of real
property in accordance with the terms of the Lease authorized by
the Warrant appearing in the attached Lease plus interest, costs
of suit and attorneys fees.
Respectful1y submitted,
Date: 2/3/00
-r(i
Ma k W. Allshouse Esquire
At orney ID #7801
21 pine Street
Harrisburg, PA 171 1
(717) 236-5000
Attorney for Plaintiff
EXHIBIT A
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AGREEXENT OF LEASE
,
L.A}I"J~OR:J :
iJ.,AJ\1?DEN CENrrER, I!\C.
TENANT:
D & 0 DEVELOPMENT CORPORATION
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Section 1
Section 2
Section 3
Section 4
Sectior:. 5
Sect ion 6
Section 7
Section 8
Section 9
Section 10
Sec:.ior. 11
Section 12
Section 13
Section 14
Section 15
Section 16
Section 17
Section 18
Section 19
Section 20
Section 21
Section 22
Section 23
Section 24
Section 25
Section 26
Section 27
Section 28
Section 29
Section 30
Section 31
Section 32
Section 33
Section 34
Section 35
Section 36
Section 37
Section 38
Section 39
Section 40
Section 41
Section 42
Exhibits
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liVer, 6.29,96
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AGRESMENT Of :EASE
I...A}Ji):'ORD:
~1PDS~ CE~~ER, I~C,
TENA.."IT:
~ & D DEVE:OPME~T COR?ORATION
AG~3E~E~rr OF LE~SE
!!';'"DEX
Premises
Te:::-m
Fixed Re:l':
Percent-age P.e:l:
G~oss Sales Defined
Additional Rent
Common Areas
Cor.6truc:io~ 0: P~exi5e5
Use. . .
Utilities
Rules a~d Regulations
Change of Improve~ents by Tenant
Repairs and Maintenance .
Haiver of :'iabili:.y by ':'enant
=ndemnificat~on and =~s~rance
Signs . . . . .
Assignment and Sublett:.ng . .
Repair After Casualty. . . .
Condemnatio:l . . . . .
Landlord's Remedies Unon Default
Discharge of Liens .
Liability 0: Landlo~d
Rights of Landlord
Subordination to Mortgage
No Waiver by Landlord
vacation of Premises
Memorandum of Lease
Rent Demand . . . .
Notices . . . . . .
Applicable ~aw and Construction
Force Majeure .
Landlord's Lien
Quiet Enjoyment
Holding Over
Brokers .
Captions
variation in Pronouns
Lenders' Approval . .
Security Deposit
No Income Participatio~
Hazardous Substances
Binding Effect . . . .
Legal Description of Shopping Center
Description of Premises
Landlord's Work
Tenant's 1'1ork
Rules and Regulations
~ignage
Guaranty
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RE'P'ERENCE PAGE
prep-a,red J~ly a, :997
HA~.H:;OE~.t cz:--mE
LA.'IDLORD ,
~.AI';P:;E:N CEXTE'R, ::NC.
~\~LCRD'S AJ~RESS:
444 Pa=~ A~e~U~ South
51;.::.e 302
Ne~ Yo~k, ~~ lCO:6
':'SNA..'I\J'r:
D & D ~EvEtJ?~ENT CCR?ORATro~.
TE~~','S ~DRESS,
TENAN7'S 7RALE N~~E:
S :GNS NOt.;
ilRSi4!SES:
:,.00 squa=e feet. (see: Exhibit "E" fer
o'.;:'::.ne c! p::emises) aka Space 52 DO'
f~on~age x 8e' de9t~)
liSE:
S\,.:=ject. ~c existing :'eaGes, Tenant. rr.av
c~e~a~e a c~si~ess for ~he retail sale Of
5:;1":5.
LEASE:
CO~~S~CEMENT ~AT~;
J'e:" _". ::;~X'~--:;"
B- "1
~ days after Landlord delivers t~e
Premises
REm
CO~~ENCEME}~ DATE:
TE~~!~ATION OA7E:
Five {51 years from Rent Comtr,encemer.t Date
TERM OF LBASE: ~. yeat"s, beginning on the Rent
Co~menceme~t Date and ending on the
Termination Date (~nless sooner terminated
pursuant to this Lease) .
~~roAL FIXED RENT,
Lease Yea:' 1....,$ 20,000.00
Lease Year 2....,$ 20,000.00
LeCise Year 3" . . . $ 20,OCO.00
Lease Year ~....,$ 22.000.00
Lease Year 5..,..$ 22,000.00
MCNTHL1 !NSTAL~~EN7S
OF fIXED RENT,
Lease Yea~ l.... ,$
Lease Ye5r G.....$
Lease Yea~ 3.....$
Lease Yea~ 4.... ,$
Lease Yea~ 5... ..5
1,666,67
1,666.67
1.666,67
1,833.33
1.833.33
?ERCENTAGS RENT: X!~
INITIAL ANNUAL
PROMOTIONAL FUND COS7, $0.30/SF an~ua:ly payable at the
beginning 0: 2ac~ lease year.
TEN~~T'S PRORA!~ SHARE~ 1.03% (2~OC5r!226,192 SF), however Ter-ant
shall not pay more than $2.00 per square
foot du~i~g the first lease year and ~he
a~nual i~:=eases thereof shall not exceed
three per:e~t (3~) per annum excluding
snow re~o~al. 7he 3\ ir.ereases may be
a~~:;,g~~:y ~~n:~:S 1t:~aL}\ 1
-rue- r,I{l.sr fO /:l~Y$ wrn+ r-JC)
C/tM. C 1+MC:. t:">.
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SECURITY DEPOSIT:
$1,666.67
REAL ESTATE BROKER
DUE COMMISSION:
NO~E
RENEWAL OPTIONS:
Prov:ded that Te~ant has not defaulted
under the te~~,5 hereof, Tenant is granted
O:1.e 4-year option to renew this Lease.
~JAL O?7ION RENT,
Year l. " ,$ ",,000.00
'1e3:- 2, ,$ 24.000,00
Yea:- ). " ,$ 24,000,00
Yea:=- "', ,$ 24.000.0,0
Yea:." 1. ,$ ".000.00
Yea:- 2, ' $ 2,000,00
Year 3, ,$ 2.000,00
Year "', " ,$ 2.000.00
MONTHLY INSTALLMENTS
OF OPTION RENT:
CONDI7IO~;
Landlord ,....i:..1 deliver the Premises in
~Vanllla EOX" condition.
CO~"n.I3t;TION ,
?rc':ided that Te:1ar:t has not defaulted
he~eunder, Land:..ord will pay to Te~ant
$~,CJO upc~ receipt by Lar.dlord of
Te~a~t's fi~st ~onth'5 ~ent and $1,000
UPO;l rece:pt. by Landlord of rent from
7er:a~: fo~ the first year.
The Reference page infol~aticn is :~corporated into and made a
part of that certain Lease (the "Leasell) made and entered i:lto by
and between ~~FDEN CENTER, INC., as Landlord, and D & D
DEVELOFMEXT CORPORATION, as Tenant. In the event of a~y conflict
between any Reference ?age in~orr.la::on and the Lease, this
Reference Page shall control. The Lease includes Exhibits IIA"
through "F", all or which are made a part hereof. unless
other~ise provided herei~, all capitali~ed terms contained in
this Re!erence Page shall have the meaning ascribed to them in
the Lease.
LANDLORD:
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By\d \fl-
TSNAN"!':
Title: Vice President
Dated, r/?/f /{,< ,1997
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T:t,e ~~T
Dated: ~ I 1997
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LEASE
THIS LEASE mads and entered into between HAMPOE~ CENTER,
INC" as Landlord and D & D DEVELO?ME}rr CORPORATION. as Tenant
evidences the following unders~and~nss and agreements. The
Reference Page attached hereto, :~cludi~g all terms defined
thereon, is inco=porated as part of this Lease.
WITNESSETH, that for g::aci a:1d valuable consideration,
each to the other in har.d paic, tr.e receipt. whereof is hereby
acknowledged. the par:ies agree as :o:lows:
PREMISES
Section 1. (a) La~dlorc leases :~ Te~ant and Tenant rer.:s from
Landlord the Premises hav:ng the :rontage and depth indicated on
the Reference Paoe (all dime~sions ~~rein are measured froffi center
of the wall ~o center of the wal2. fer a:1 party walls ar.d from the
outside face of all exterior wal~s a~d store fronts), located in
the building (the IIBuild:::g"j c:;:r:nonly kno.....n as Hampde:l Centre
("Shopping Center"). "':':te Shopp::-.g Cer:.ter is more particularly
desc=ibed by metes and bOLlnds or:. :;:xhibit. HA" attached hereto and
made a part hereof by refe~ence.
(bl The Premi5~s are c~lt:;'i:1.ed in red on Exh:.bit "B"
attached he:-eto ar.d itade a part. hereof by reference. "Tenant's
Proportionate Share" as used in tjis Lease shall mean a f:-accion,
the numerator of which is t~e a~oss :easable area of the ?remises
and the d~nomina:or of i...hich -'is the g:'-055 leasable area of the
Shopping Ceanter. p:.-emises a~e cross-hatched on Exhibit "B" att:ached
hereto. Landlord's calculation of Tenar.t'S Proportionate Share is
as indicated on the Reference PaC's. Gross leasable area of the
Shopping Center means .al:' ground floor area contained in the
Shopping Center designated for te:1.ants' exclusive occupancy.
(c) Landlord expressly reserves (l) the use of the
exterior rear ar.d side walls and :.-oo'~ of the Premises and the
exclusive use of any space between the ceiling of the premises and
the floor above or the roof of t.he Building, (iil the right to
install, maintain, use, repair, and replace the pipes, ducts,
conduits. and wires leading into or running through the Premises
(in locations which will not materially interfere with Tenant's use
thereof), (iii) the right in its sole and absolute discretion to
expand, enlarge. make alterations or additions to. and to build
additional stories on, the Shopping Center and to build other
buildings or improvements on the Common Areas (as herei:1after
defined), and (iv) the rig~~, upon sixty (GO) days prior written
notice to Tenant, to transfer and re~ove Tenant from the Premises
to other available te~ant space of equal area and equivalen~ rent
in the Shopping Center. (Landlord shall bear the expense of said
transfer Or removal as well as the expense of any renovations or
alterations necessary to ~ake the new space conform substantially
in arrangement and layout w:.th the Premises covered by this Lease) .
The within reservations in favor 0: Landlord are in addition to the
rights granted to Landlord under Sec~ion 23 hereof.
~
Section 2. (a) The Lease Term shall be as indicated on the
Reference Page. The term "Commencement Datell means the day after
Landlord' 5 work on the P:"emises, as specifically set forth in
Section 8 hereo~, will be comp:'eted to the eJCtent reasonably
required for the installation by Tenant of Tenant's fixtures.
furnishings and equipment or if ::0 'Work is to be performed by
Landlord pursuant to Section 8 hereof. on the date keys are
delivered to Tenant by Landlord. Landlord shall notify Tenant in
writing of the date on which Lar.dlo=d's work on the Premises has
been or will be completed and of the Commencement Date. The parties
agree to endorse this Lease to ider.tify the day, month and year
that the Commencemer.t Da:e aceua:ly occurs.
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(b) If Landlord is required to perform work pursuant to
Section 8 hereof, when the actual Commencement Date is established,
t.he parties will promptly enter into a Supplement to Lease,
prepared by Landlord, stipulating the Commencement Date and the
Expiration Date of the Term.
(c) The term "Lease Year" as used herein shall begin on
the Commencement Date and end twelve months therefrom.
(d) Landlord hereby grants to Tenant the right and
option co extend the Term of this Lease for the option periods
indicated in the Renewal Option Section of the Reference page (each
a uRenewal Term")'. Tenant shall notify Landlord in writing of its
election to extend this Lease for each Renewal Term not less than
six (6) months nor more than twelve (12) months prior to the
expiration date of the then existing term. Each Renewal Term shall
be upon all of the terms, covenants, and conditions of this Lease
except that the Annual Fixed Rent and Percentage Rent payable
during such Renewal Term shall be as set forth in Sections 3(.Q.l and
ilAl hereof, respectively. Tenant shall have no right to extend or
renew this Lease if it is in default hereunder at the time of.
giving its notice of renewal, nor shall any renewal notice be
effective if Tenant is in default hereunder as of the first day of
the extended term which was the subject of such 'notice.
FIXED RENT
Section 3. (a) Tenant agrees, without notice or demand and
without any deduction or setoff, to pay to Landlord, at Landlord's
Address shown on the Reference Page, or at such other place as
Landlord may designate, as a fixed minimum rent for the Premises
per Lease Year, the Annual Fixed Rent indicated on the Reference
Page for such Lease Year in fixed equal monthly installments during
each Lease Year equal to the Monthly Installments of Fixed Rent
indicated on the Reference Page for such Lease Year, each Monthly
Installment of Fixed Rent to be payable in advance on the fi.rst day
of each month during the Term. Tenant agrees to pay to Landlord, if
as,sessed by the jurisdict.ion in which the Shopping Center is
located, any sales or excise tax imposed, assessed or levied in
connection with Tenant's payment of the Annual Fixed Rent.
(b) Upon execution of this Lease, Tenant shall deposit
with Landlord (i) the Security Deposit as indicated on the
Reference Page to be held by Landlord during the Term pursuant to
the provisions of Section 39 hereof; and (ii) the first Monthly
Installment of Fixed Rent, and one month's worth of Additional Rent
(as hereinafter defined) . . The funds so deposited pursuant to Item
(ii) of this Subparagraph (b) shall be applied to the Monthly
Installment of Fixed Rent and the Additional Rent due for the first
full month of the Term.
(c) Tenant's obligation to pay rent (as defined in
Subparagraph 6(c)) shall begin on the earlier to occur of the date
(said date is hereinafter re'ferred to as the "Rental Commencement
Datell) upon which Tenant shall open for business in the Premises or
the day after the expiration of the "Fixturing Period". The
Fixturing Period shall begin on the Commencement Date and continue
for the number of days specified on the Reference Page. Rent due
for any period which is less than a calendar month, whether prior
to the Rental Commencement Date or after the expiration Date, shall
be prorated on a daily basis and shall be computed on the basis of
Tenant's monthly rental payments (utilizing a thirty DO) day month
for purposes of such computation) . Tenant shall pay to Landlord the
rent for each such day {i) concurrently with the first Monthly
Installment of Fixed Rent due hereunder; (ii), upon vacating the
Premises as herein provided; or (iii) upon demand from Landlord, as
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the case may be.
(d) In the event Tenant exercises its right to extend
the Term for a Renewal Term, the Annual Fixed Rent payable during
the Renewal Term shall be equal to the amount indicated in the
Renewal Option section of the Reference Page for such Renewal Term
in fixed equal, monthly, in,st'allme.nts equal to the Monthly
Installment of F~xed Rent ~nd~cated 10 the Renewal Option section
of the Reference Page for such Renewal Term each to be payable in
advance on the first day of each month during such Renewal Term.
(e) Tenant recognizes that late payment of any rent or
other sum due hereunder will result in administrative expense to
Landlord, the extent of which additional expense is extremely
difficult and economically impractical to ascertain. Tenant
therefore agrees that if rent or any other sum is due and unpaid
fifteen (15) days after said amount is due, such amount shall be
increased by a late charge in an amount equal to the greater of:
(a) Fifty Dollars ($50.00) or (b) a sum equal to five percent (5%)
of the unpaid amount. The amount of the late charge shall be
reassessed and added to Tenant's obligation tor each successive
monthly period until paid. The provisions of this Section shall not
in any way affect Landlord's remedies pursuant to Section 20 of
this Lease.
PERCENTAGE RENT
Section 4. (a) In addition to Annual Fixed Rent, and as a
material inducement for Landlord to lease the Premises to Tenant,
Tenant agrees to pay to Landlord during each Lease Year the
Percentage Rent indicated on the Reference Page for such Lease
Year. During each Renewal Term, Percentage Rent shall be equal to
the percentage Rent indicated in the Renewal Option section of the
Reference page for' such Renewal Term.
(b) In any Lease Year in which (i) Tenant shall cease
conducting business in the Premises, (ii) the Term is terminated,
or (iii) there shall be an abatement of Annual Fixed Rent, so that
the Lease Year is less than twelve (12) calendar months, Tenant
shall pay to Landlord prorated Percentage Rent equal t.o the amount
by which the percentage of Tenant's Gross Sales set forth on the
Reference Page for such lesser period exceeds the Annual Fixed Rent
paid during the prior or subsequent Lease Year multiplied by the
number of months in the shortened Lease Year divided by twelve
(l2) ,
(c) On or before the twentieth (20th) day of each
calendar month during the Terml Tenant shall deliver to Landlord a
complete and accurate statement, signed and certified by Tenant,
showing in detail Gross Sales (as hereinafter defined) for the
previous month and Gross Sales for each prior month during the
current Lease Year.
(d) (i) During the first Lease Year, Percentage Rent
shall be payable in one lump sum no later than thirty (30) days
after the end of the first Lease Year. (ii) Commencing with the
second Lease Year and continuing throughout the term of this L,ease,
Percentage Rent shall be payable on a monthly basis as follows: No
later ,than thirty (30) days before the first day of each Lease
Year, Landlord shall send Tenant an estimate of annual percentage
Rent due for said Lease Year based on the amount of Percentage Rent
paid by Tenant in the prior consecutive twelve (12) months. The
estimate shall be adjusted to equal twelve (12) times the average
monthly Percentage Rent due if the Tenant has not been in
possession of the premises for twelve (12) months. On or before the
first of each month of said Lease Year, Tenant shall pay to
Landlord one-twelfth (1/12) 'of the estimated annllal Percentage Rent
due for the said Lease Year.. (iii) Within (30) days after the end
of each Lease Yearj Tenant shall deliver to Landlord a complete and
accurate statement, signed and certified by Tenant, showing (a}
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Gross Sales for such Lease Year; and (b) the computation of
Percentage Rent for such Lease Year. In the event such statement
reflects that Tenant owes Landlord Percentage Rent in addition to
the sum of monthly Percentage Rent payments previously made during
such Lease Year, Tenant shall pay the amount of suc~ additional
Percentage Rent to Landlord at the time such statement is delivered
to Landlord. In the event such statement reflects that the sum of
monthly Percentage Rent payments previously made during such Lease
Year exceeds the Percentage Rent actually due for such Lease Year,
the amount of such excess shall be credited against the next due
monthly payments of Percentage Rent hereunder. If such excess
should occur in the last Lease Year of the Term, Landlord shall pay
the amount of such excess to Tenant within thirty (30) days after
receipt of such statement.
(e) During the Term, Tenant shall not directly or
indirectly engage in any similar or competing business' within three
(3) miles of the Shopping Center. This restriction shall not apply
to Tenant's stores, if any, presently open and in operation within
such area. As used in t.his Section 4:, the word "Tenant II shall
include: (i) if Tenant is a corporation, all of Tenant's officers,
directors, employees, or shareholders, jointly and severally, and
all entities in which Tenant or its officers, directors, employees,
or shareholders, jointly and severally, shall have any interest;
and (ii) if Tenant consists of one (1) or more partners,
individuals, and/or unincorporated entities, each partner, the
respective spouses and children of such partners and individuals,
jointly and severally, and all corporations and/or other entities
in which such partners, individuals, entities, or any member of
such unincorporated entities, jointly and severally, shall have any
interest.
(f) If Tenant shall engage in any similar or competing
business in viola.tion of Section 4 {el hereof, in addition to any
and all other remedies available to Landlord at law and in equity,
the amount of Gross Sales, made by such competing or similar
business shall be included in Gross Sales for the Premises in the
computation of Percentage Rent.
GROSS SALES DEFINED
Section 5. (a) The term lfGross Sales" as used herei.n SI1311 be
construed to include the entire amount of the actual sales price of
all goods and services provided at, in, on, or from the Premises,
including, without limitation, mail or telephone orders received or
filled at the Premises, all deposits not refunded to purchasers,
orders taken at or from the Premises (although said orders may be
filled elsewhere), and sales and receipts by any sublessee,
concessionaire, licensee or other party in the Premises. Each
installment or credit sale shall be treated as a sale for the full
price in the month during which such installment or credit sale
shall be made, irrespective of the time when Tenant shall receive
payment (whether full or partial) from its customer. Layaway sales,
so-called, shall be included in the Gross Sales to the extent of
the down payment and any further payments thereupon dnring each
calendar month. Gross Sales shall not include the following: (i)
sums collected and paid out by Tenant for any sales or excise tax
imposed by any duly constituted governmental authority i (ii) the
exchange of merchandise between t.he stores of Tenant, if any, where
such exchanges of goods or merchandise are made solely for the
convenient operation of the business of Tenant and not for the
purpose of consummating a sale which has theretofore been made at,
in, on, or from the Premises, and/or for the purpose of depriving
Landlord of the benefit of a sale which otherwise would be made at,
in, on, from, or upon the Premises; (iii) the amount of returns to
shippers or manufacturers; (iv) the amount of any cash or credit
refund made upon any sale where the merchandise sold, or some part
thereof, is thereafter returned by the purchaser and accepted by
Tenant j (v) sales of fixtures; or (vi) all sums and credits
received in settlement of claims for loss or damage to merchandise.
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(b) All sales shall be recorded by means of cash
registers or computers (IlRegisters") which display to the customer
the amount of the transaction. All registers shall be equipped with
sales totalizer counters for all sales categories and a sequential
transaction totalizer counter. which counters are locked in,
constantly accumulating, and which cannot be reset, Said registers
shall further contain tapes upon which sales details and sequential
transaction numbers are imprinted. Beginning and ending sales
totalizer readings shall be made a matter of daily record. In the
event of admission charges or rentals, Tenant shall issue serially
numbered tickets for each admissions or rental and shall keep an
adequate record of said tickets, both issued and unissued. Landlord
may require Tenant to provide Landlord by noon of the next business
day a recapitulation of Gross Sales to be set forth upon forms
provided by Landlord. Failure to make available a proper receipt to
each customer upon his request of the same upon payment shall
constitute a breach of this Lease.
Tenant shall keep on the Premises, or at its principal
office, true and complete records and accounts of all Gross Sales,
including daily bank deposits, in, at, and from the Premises. Such
boolcs and records shall include such sale records as would normally
be examined by an accountant pursuant to generally accepted
auditing standards in performing an audit of Tenant's sales or the
sales of its subtenants or concessionaires.
On or before the twentieth (20th) day of each month,
Tenant shall furnish to Landlord a true and accurate statement for
each preceding month of all Gross Sales during said preceding month
(showing the refunds and returns deducted in computing the amount
of such Gross Sales). which statement shall be certified by an
authorized representative of Tenant to be correct. Tenant agrees to
give Landlord access during business hours to such books and
records. Tenant agrees that it will keep and preserve for at least
thirty-six (36) months after the end of each Lease Year all sales
slips, cash register tape readings, sales books, bank booles, or
duplicate deposit slips, and other evidence of Gross Sales for such
year. Landlord shall have the right at any time and from time to
time to audit all of the books of account, bank statements,
documents, records returns, papers, and files of Tenant relat~ing to
Gross Sales and Tenant on request by Landlord shall make all such
matters available for such examination at the premises or at its
principal office. If Landlord should have such an audit made for
any year and the Gross Sales shown by Tenant's statement for such
year shall be found to be understated by more than three percent
(3%-), then, in addition to immediately paying Landlord the full
amount of the understated percentage Rent, Tenant shall pay to
Landlord the cost of such audit. Landlord's right to have such an
audit made with respect ,to any year shall expire thirty-six (36)
months after Tenant's statement for such year shall have been
delivered to Landlord. Landlord shall have the right to terminate
this Lease upon notice to Tenant if there should be more than two
(2) audits during the Lease Term which reveal understatements of
gross sales by Tenant by more than three percent (3%).
(c) All statements of Gross Sales shall be delivered to
Landlord's Address or to such other place as Landlord may from time
to time direct by written notice to Tenant.
(d) Computation of the Percentage Rent specified herein
shall be made separately with regard to each calendar month and
each Lease Year of the Term hereof, it being understood and agreed
that the Gross Sales of any Lease Year and the Percentage Rent due
thereon shall have no bearing on or connection with the Gross Sales
of any other Lease Year.
(e) It is understood and agreed that Landlord shall in
no event be construed or held to be a partner, co-venturer or
associate of Tenant in the conduct of Tenant's business, nor shall
Landlord be liable for any debts incurred by Tenant. in the conduct
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of Tenant's business. It is understood and agreed that the
relationship is and at all times shall remain that of Landlord and
Tenant. Landlord and Tenant acknowledge and agree that neither
shall be subject to any implied obligations to the other, by reason
of the fact that this Lease provides for the payment of Percentage
Rent.
ADDITIONAL RENT
Section 6. (a) Tenant agrees to pay to Landlord, as additional
rent ("Additional Rent") for the Premises, throughout the Term, the
following amounts:
(i) Tenant's Proportionate Share of the cost of
operating and maintaining the Common Areas, which areas are defined
in Section' 7, (the "Common Area Cost'l), including, without
limitation, the cost of the following: lighting; utilities,
cleaning, snow and trash removal, line painting, security (iE
provided), management fees not to exceed 5% of all rent and
additional rent charged for the Shopping Center, maintenance,
materials, labor costs, equipment, (inclUding, without limitation,
the cost of service agreements on equipment), tools, general
repairs, employee benefits and payroll t.axes, accounting fees,
legal fees, permits, license and inspection fees, sales, use and
service taxes, and the repair or replacement of paving, curbs,
stations, first aid stations, comfort stations, stairways, truck
ways, loading docks, package pick-up stations, sidewalks, ramps,
the parking lot, driveways, any garage, landscaping, drainage
facilities, and lighting facilities, including traffic lights, as
may be necessary from time to time, and any other cost of operation
of the, improvements on the Common Areas. The Common Area Costs
shall include depreciation of equipment acquired for use in Common
Area maintenance, but shall not include the original cost thereof.
(ii) Tenant's Proportionate Share of any real estate and
ad valorem taxes and assessments {l} which shall or may become a
lien upon, or be assessed, imposed, or levied by lawful taxing
authorities against the land upon which the Shopping Center is
located, the Building, and other improvements on the Shopping
Center for the tax years (the years for which a lien is imposed)
falling wholly or partially within the Term of this IJeasei U)
which arise in connection with the use, occupancy, or possession ot
the Shopping Center or any part thereof or any land, buildings, or
other improvements thereonj (3) which become due and payable out of
or for the Shopping Center, any part thereof, or any land,
buildings, or other improvements thereonj or (4) which are imposed,
assessed, or levied in lieu of, in substitution for, or in addition
to any or all of the foregoing (collectively the IITax Costll). The
Tax Cost shall include any fees, expenses or costs {including
attorneys' fees, expert fees and appraisal fees} incurred by
Landlord in protesting any assessments, levies or the tax rate, but
shall not include any charge (such as a water meter charge) which
is measured by actual user consumption. A real estate tax bill or
copy thereof submitted by Landlord to Tenant shall be conclusive
evidence of the amount of any real estate taxes, assessments, or
installment thereof. In addition, Tenant shall pay all taxes levied
against personal property, fixtures and Tenant's improvements in
the Premises. If such taxes for which Tenant is liable are levied
against Landlord or Landlord's property and if Landlord elects to
pay the same or if the assessed value of Landlord's property is
increased by inclusion of any such items and Landlord elects to pay
the taxes based on such increase, Tenant shall pay to Landlord uppn
demand that part of such taxes for which Tenant is liable
hereunder.
(iii) Tenant's Proportionate Share of all premiums for
public liability, fire and extended coverage or al:. risk, busin~ss
interruption, and/or rent loss, and/or any other J.l1surance POllCY
which may reasonably be carried by Landlord insuring the Premises,
the Building, the Common Areas, the Shopping Center, or any
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improvements therein (the IIInsurance Cost") .
(iv) A proportionate share of all utilities services not
measured by a separate meter for the Premises and provided to
Tenant and other tenants of the Shopping Center (the lIUtility
Cost"). Tenant's share of the Utility Cost shall be determined on
the basis of the total square feet of floor area of the Premises as
a percentage of the total square feet of floor area leased by all
tenants provided such services. Tenant shall pay its share of such
cost, together with an amount equal to fifteen percent (15%)
thereof as payment of administrative costs of Landlord, within ten
(lO) days after demand therefor. Landlord shall not bill Tenant for
such cost more often than monthly. In the event Landlord determines
that it is not appropriate to base the utility bills on Tenant's
proportionate share due to the nature of Tenant's business
activities. Landlord may use its discretion in allocating such
bills.
(v) Tenant shall pay to Landlord prior to the
Commencement Date the Annual Promotional Fund Cost indicated on the
Reference Page, as Tenant I s initial annual payment for Tenant's
share of the costs (II Promotional Fund Costs II) of a promot ional fund
(lIpromotional FundI!) to be used to pay all costs and expenses
incurred in connection with the formulation and execution of
publicity programs for the promotion of the Shopping Center. Such
programs, which, at Landlord's option, shall be determined by an
advertising agency or firm or volunteer committee of tenants, may
include, without limitation, special events, shows, displays,
advertisements, seasonal events, and promotional literature;
provided, however, that Landlord or an outside advertising agency
approved by Landlord shall have the right to review and approve
such publicity programs I the items on the Promotional Fund budget
-for each year, and any amendments to said budget. A portion of the
Promotional Fund may be applied to pay costs of administering the
Promotional Fund. Tenant's initial payment to the promotional Fund
shall be increased in such Lease Years, if any, that the Annual
Fixed Rent is increased pursuant to Section 3 hereof by the
percentage increase in the Annual Fixed Rent. Tenant agrees to
advertise in any and all special promotional Fund newspaper
sections, tabloids or other advertisements, (inCluding audio and/or
visual media) and agrees to cooperate and participate fUlly in all
special sales and promotions sponsored by the Promotional Fund.
(b) Tenant's Proportionate Share of the Common Area
Cost, the Tax Cost, and the Insurance Cost shall be estimated by
Landlord no later than thirty (3D) days prior to the first day of
each Lease Year. Landlord shall notify Tenant of such estimates
which shall be paid, together with an amount equal to fifteen
percent (15%) thereof as payment of administrative costs of
Landlord, by Tenant in advance, on the first day of each and every
calendar month throughout such Lease Year. At the end of the Lease
Year, when Landlord has calculated the exact amount of Tenant's
Proportionate Share of such costs, Landlord shall notify Tenant of
such exact amount. Any deficiencies in the payments theretofore
(inclUding said administrative costs) made by Tenant shall be pa:id
by Tenant to Landlord within ten (10) days of receipt of said
notice. Any surplus paid by Tenant during the preceding Lease Year
shall be applied against the next due monthly installments of such
costs due from Tenant. During any part of the Term which shall be
less than a full calendar year, any and all such costs shall be
prorated on a daily basis so that Tenant shall only pay Tenant's
Proportionate Share of such costs attributable to the portion of
the calendar year occurring within the Term.
(c) The term It rent II as herein used shall include Annual
Fixed Rent, Percentage Rent and Additional Rent.
COMMON AREAS
Section 7. Subject to the Rules and Regulations. specified in
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Section ~l hereof and Landlord's rights under Section l(cJ hereof,
Landlord hereb~ g~ants to Tenant an~ Ten~nt's employees, agents,
customers, and ~nv~tees the nonexclus~ve right, during the Term, to
use, subject to the rights of governmental authorities, easements,
public highways and other restrictions of record, in common with
others granted the use thereof, the Common Areas located within the
Shopping Center. The term ItCommon Areas" as used in this Lease
shall mean the entire Shopping Center less the gross leasable area
of the Shopping Center and shall include, without limitation, the
par~ing areas, roadways, pedestrian sidewalks, loading docks,
del~very areas, landscaped areas, and all other areas or
improvements which may be provided by Landlord for the general use
of tenants of the Building and the Shopping Center and their
agents, employees, and customers. Landlord shall be responsible for
the operation, management, and maintenance of the Common Areas. The
manner in which the Common Areas shall be maintained and the
expenditures therefor shall be at the reasonable d'iscret.ion of
Landlord. Landlord may temporarily close parts of the Common Areas
for such periods of time as may be necessary for {i) temporary use
as a work area in connection with the construction of buildings or
other improvements within the Shopping Center or contiguous
propertYi (ii) repairs or alterations in or to the Common Areas or
to any utility-type facilities; (iii) preventing the public from
obtaining prescriptive rights in or to the Common Areas; (i v)
emergency or added safety reasons; or (v) doing and performing such
other acts as in the use of good business judgment Landlord shall
determine to be appropriate for the Shopping Center; provided,
however, that Landlord shall use reasonable efforts not to unduly
interfere with or disrupt Tenant's business.
CONSTRUCTION OF PREMISES
Section 8. (a) Prior to the Commencement Date, Landlord shall
complete the improvements to the Premises described in Exhihit lie"
attached hereto and made a part hereof by reference. Tenant hereby
approves Exhibit lien and all of the improvements, plans and
specifications described therein. It is understood and agreed by
Tenant tha-t. changes in such improvements, plans and specifications
which will not materially interfere witl1 Tenant's use of the
Premises and which may be necessary during construction of the
Premises shall not affect, invalidate, or change this Lease or any
of its terms and provisions.
(b) Landlord's work in accordance with Exhibit "C" sha] 1
be deemed approved by Tenant in all respects thirty (30) days after
the Commencement Date, unless prior thereto Landlord receives
written notice from Tenant of any defect in such work. Any
disagreement which may arise between Landlord and Tenant concerning
the work to be performed by Landlord shall be resolved by the
decisions of Landlord's architect.
(c) Tenant shall complete the improvements to the
Premises described in Exhibit IIDn attached hereto and made a pa-r:t
hereof by reference. Landlord and Tenant hereby approve Exhibit liD"
and all of the improvements, plans and specifications described
therein, provided that Tenant's work descril1ed in Exhibi l:~~~ shall
be performed in accordance with the provisions of 1iectin1L.l2J&lli
hereof i and provided furtl1er that any change in the improvements,
plans and specifications described in Exhibit "D" shall be approved
by Landlord in writing in accordance with the provisions of Section
121a) Iii) hereof.
USE
Section 9. (a) The Premises shall be occupied and used
exclusively for the purposes described on the Reference Page and
for no other use, unless Tenant has obtained 1~and1.ord' s prior
written consent, which consent may be withheld in Landlord's sole
discretion for any reason or no reason whatsoever. Tenant shall
commence business in the Premises OIl or before sixty (60) days
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after the Commencement Date, shall operate continuously one hundred
percent (lOO~) of the Premises during the entire Term and shall
keep the Premises fully stocked with merchandise and staffed with
personnel so as to maximize Gross Sales at the Premises at. all
times. Tenant shall conduct its business in the Premises on all
business days during all hours as from time to time may be
reasonably determined by Landlord to be consistent with the days
and hours of other tenants in the Shopping Center, but in no event
less than eight (8) hours in a business day, five (5) days a week
and fprty (40) hours a week (Holidays excepted), Tenant may close
the Premises during reasonable periods for repairing, cleaning or
decorating the premises, with the prior written consent of
Landlord.
(b) Tenant agrees to conduct its business in the
Premises under Tenant's Trade Name as indicated on the Reference
Page.
(c) Tenant shall use and occupy the Premises in
accordance with all governmental laws, ordinances, rules, and
regulations and shall lceep the Premises in a clean, careful, safe,
and proper manner. Tenant shall not use, or allow the Premises to
be used, for any purpose other than as specified herein and shall
not use or permit the premises to be used for any unlawful,
disreputable, or immoral purpose or in any way that will injure the
reputation of the Shopping Center. Tenant shall not permit any
activities in the Premises which may create or cause noise levels
which are audible outside the Premises and disturbing to
neighboring residences, other tenants or their customers or
employees. Tenant shall not permit the Premises to be occupied in
whole or in part by any other person or entity. Tenant shall not
cause or permi t the use or occupancy of the Premises to be or
remain a nuisance or disturbance, as determined by Landlord in its
sole discretion, to neighboring residences, other tenants,
occupants, or users of the Shopping Center.
UTILITIES
Section 10. (a) (i) Landlord shall provide, up to the lease line of
the Premises, the necessary mains and conduits to provide water,
sewer, gas (if available by public utilities) and electric service
to the Premises. Tenant shall duly and promptly pay to the supplier
thereof all bills for utilities consumed in the Premises measured
by a separate meter for the Premises.
(ii) If Tenant shall use any utility service for any
purpose in the Premises which is or can be measured by a separate
meter for the Premises and Landlord shall elect to supply such
service, Tenant shall accept and use the same as tendered by
Landlord and pay Landlord therefor at the applicable rates charged
by Landlord. In no event shall Tenant pay to Landlord for any such
service more than would be chargeable to Tenant by the utility
company providing such service. Payment for any and all water, gas,
sewer, and electricity service used by Tenant, if furnished by
Landlord, shall be made monthly as Additional Rent within thirty
(30) days of the presentation by Landlord to Tenant of bills
therefor.
(iiil Notwithstanding anything to the contrary provided in
this Section 10 or in Subsection 6 (a) (iv), Tenant acJeI10wledges that
water service to the Shopping Center shall be supplied by Landlord,
and Tenant agrees to purchase same from Landlord and to pay the
charges therefor when bills are rendered at the applicable rates.
Such water service shall be measured by a master met.er and Tenant's
share of the charges for such service shall be allocated by
Landlord, at Landlord's option, either (a) on the basis of the
total square feet of floor area at the Premises as a percentage of
the total square feet of floor area leased by all tenant,s in the
Shopping Center provided such water service; or (b) based upon
readings taken f't'om a water sub-meter for the Premises, if Landlo'Cd
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elects to install such a sub-meter. All such charges shall be paid
monthly to Landlord as Additional Rent within thirty (30) days of
the presentation by Landlord to Tenant of bills therefor.
(b) In the event Landlord supplies any sanitary sewer
facilities to the Premlses, Tenant shall pay as Additional Rent
Tenant's Proportionate Share of the cost of operating and
maintaining such facilities, including, without limitation, the
rental cost and/or amortization of such facilities.
(c) Landlord shall have the right to cut off and
discontinue, without notice to Tenant, any utility or other service
whenever and during any period for which bills for the same rent
or other obligations hereunder are not promptly paid or pe~formed
by Tenant.
(d) The obligations of Tenant to pay for ut'i1.ity service
as herein provided shall commence on the Commencement Date.
Landlord shall not be liable in damages or otherwise should the
furnishing of such services to the Premises be interrupted by fire,
accident, riot, strike, act of God, the making of necessary repairs
or improvements, or other causes beyond the control of Landlord.
(e) Landlord shall not be liable in the event of any
interruption in the supply of any utilities. Tenant agrees that it
will not install any equipment which will exceed or overload the
capacity of any utility facilities serving the Premises and that if
any equipment installed by Tenant shall require additional utility
facilities, installation of the same should be at Tenant's expense,
but only after Landlord's written approval of same.
RULES AND REGULATIONS
Section 11. Tenant agrees that Landlord has the right, at any time
and from time to time, for the general welfare of the Shopping
Center and its occupants, to impose reasonable rules and
regulations of general application governing the conduct of
occupants of the Shopping Center and their use of the Common Areas,
Tenant agrees to comply with any and all such rules and regulations
imposed by Landlord, including, without limitation, those rules and
regulat-ions set forth in Exhibit "EII.
CHANGE OF IMPROVEMENTS BY TENANT
Section 12. (a) (i) Upon prior written approval of Landlord,
Tenant shall have the right during the Term to make such interior
alterations, changes and improvements to the premises (except
structural alterations, changes, or improvements), as may be proper
and necessary for the conduct of Tenant1s business and for the full
beneficial use of the Premises, provided Tenant shall (A) pay all
costs and expenses thereof; (B) make such alterations, changes, and
improvements in a good and workmanlike manner, with new materials
of first-class quality, and in accordance with all applicable laws
and building regulations; and (C) provide Landlord reasonable
assurances, prior to commencing such alt:erations, changes, and
improvements, that payment for the same will be made by Tenant.
Tenant shall not make any structural al terations, changes or
improvements to the Premises.
(ii) In order to obtain Landlord's approval for such
alterations, changes, and improvements, Tenant shall submit to
Landlord plans and specifications describing the design, materials,
style, and appearance of such alterations, changes, and
improvements with reasonable particularity. Within thirty (30) days
after receipt of such plans and specifications, Landlord shall
notify Tenant of any Objections of Landlord. Tenant shall cure the
cause for such objection within thirty (30) days after receipt of
such notice and shall resubmit such plans and specifications for
Landlord's review and approval. Landlord may charge Tenant a
reasonable charge to cover Landlord's overhead as it relates to
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such p~opos~d work. Prior to construction, Tenant shall provide
such flnanclal assurances as Landlord shall require to assure
payment of the costs thereof and to protect Landlord against any
loss from any mechanic'sl materialmen's, or other liens. Tenant
shall not be permitted to enter upon the roof of any building
without the prior consent of Landlord.
(b) Except as otherwise provided below, all signs,
equipment, furnishings, nonpermanent improvements, and trade
fixtures within the Premises, installed in the Premises by Tenant
and paid for by Tenant, shall remain the property of Tenant and
shall be removed by Tenant upon the termination of this Lease,
provided that any of such as are affixed to the Premises and
require severance shall be removed by Tenant and Tenant shall
repair any damage caused by such removal. By written notice to
Tenant prior to expiration or termination of the Term, Landlord
shall have the right to require Tenant to leave in 'the Premises
equipment, improvements, or fixtures attached to the Premises or
the Building. Anything contained herein to the contrary
notwithstanding, the HVAC Facilities, and related systems shall at
all times remain the property of Landlord and shall not be removed
by Tenant.
REPAIRS AND MAINTENANCE
Section 13. (a) Landlord shall maintain the foundation, the
exterior structural walls, and the roof of the Building in good
repair, except that Tenant shall reimburse Landlord for the cost of
any repair occasioned by the act or negligence of Tenant, its
agents, employees, invitees or licensees. Landlord shall not' be
required to make any other improvements or repairs of any kind upon
the Premises and appurtenances thereto, except as otherwise
provided in this Lease. If the Premis'es should become in need of
repairs required to be made by Landlord hereunder, Tenant shall
give immediate written notice thereof to Landlord, and Landlord
shall not be responsible in any way for failure to make any such
repairs until a reasonable time shall have elapsed after the giving
of such written notice. Landlord's sole liability shall be limited
to the cost of the repair. Landlord shall not be liable to Tenant
for any interruption of Tenant's business or inconveni.ence caused
Tenant or Tenant's assigns, sublessees, customers, invitees,
employees, licensees or concessionaires in the Premises on account
of Landlord's performance of any repair, maintenance or replacement
in the Premises, any other work therein or in the Shopping Center
pursuant to Landlord's rights or obligations under this lease so
long as such work is being conducted by Landlord in accordance with
the terms of the Lease and without gross negligence or gross
disregard for Tenant's business operations. Unless otherwise
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 Shopping
Center or the Premises or in or to fixtures, appurtenances and
equipment therein.
(b) At the sole cost and expense of Tenant and
throughout the Term, Tenant shall keep and maintain the Premises in
good order, condition, and repair, in a clean, sanitary, and safe
condition in accordance with the laws of the State in which the
Premises are located, and in accordance with all directions, rules,
and regulations of the health officer, fire marshal, building
inspector, or any other proper officer of the governmental agencies
having juriSdiction over the Premises, Without limiting the
foregoing, Tenant shall be responsible for maintenance, repair,
and, with Landlord's consent, replacement as needed .Of all
electrical, plumbing, heating, ventilating, air condition~ng, and
utility systems located on the Premises, . all plate glass ~nd
windows, window fittings and sashes, and lnterlor and exterlor
doors all fixtures within the Premises, all interior walls, floors
and c~ilings, water heaters I termite and pest extermination, all of
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Te~ant~s improvem~nts ~nd trade fixtures. Tenant shall keep and
ma~nta~n the Prem~ses ~n accordance with all requirements of law
concerning the manner, usage, and condition of the Premises and
appurtenances thereto, as the same shall be in effect from time to
time. Tenant shall permit no waste, damage, or injury to the
Premises. If at any time and from time to time during the Term, and
any renewal th~reof, Tenant shall fail to make any maintenance,
repairs or replacements in and to the Premises as required in this
Lease I Landlord. shall have the right, but not the obligation, to
enter the Prem~ses and to make the same for and on behalf of
Tenant, and all sums so expended by Landlord shall be deemed to be
Additional Rent hereunder and payable to Landlord upon demand.
Tenant shall keep in force throughout the Lease Term maintenance
contracts for the heating, ventilating and air conditioning systems
reasonably satisfactory to Landlord.
WAIVER OF LIABILITY BY TENANT
Section 14. Landlord and Landlord's agents and employees shall not
be liable for, and Tenant unconditionally and absolutely waives any
and all causes of action, rights, and claims against Landlord and
its agents and employees arising froml any damage or injury to
person or property I regardless of causel sustained by Tenant or any
person claiming through or under Tenant, resul ting from any
accident or occurrence in or upon t~e Premises of any other part of
the Building or the Shopping Center, unless the same shall be due
to the gross negligence of Landlord and/or Landlord's agents and
employees. This provision shall survive the termination or
expiration of this Lease.
INDEMNIFICATION AND INSURANCE
Section 15. (a) Tenant will defend, indemnify, and save Landlord
harmless from and against any and all claims, actions, lawsuits,
damages, liability, and expense (including, without limitation,
attorneys' fees) arising from loss, damage, or injury to persons or
property occurring inion, or about the Premises, arising out of
the Premises, or occasioned wholly or in part by any act or
omission of Tenant, Tenant's agents, contractors, customers or
employees.
(b) At all times from the Commencement Date and duriJlg
the Term or any Renewal Term, Tenant shall, at its expense, keep in
full force and effect the following insurance policies insuring
Tenant, Landlord, and Landlord's mortgagee: (i) public liability
insurance in companies acceptable to Landlord with minimum limits
of (a) One Million Dollars ($1,000,000,00) on account of bodily
injuries to or death of one (1) person, and One Million Dollars
($1,000,000.00) on account of bodily injuries to or neath of more
than ODe (1) person as the result of anyone (1) accident or
disaster, and One Million Dollars ($l, 000, 000.00) on account of
damage to property; or (b) One Million Dollars {$l,OOO,OOO} Bodily
Injury Liability and Property Damage Liability Combined Single
Limit Coverage; and (ii) all-risk hazard insurance covering
Tenant I s improvements to the Premises and all equipment and
contents within the Premises for the full replacement value and
business interruption insurance for a minimum of six (6) months.
Prior to the Commencement Date and upon each renewal, Tenant shall
deposit with Landlord the policies of such insurance, or
certificates thereof, showing Landlord and its mortgagee as
additional insureds, and shall update the same prior to expiration
thereof. Tenant's insurance shall not be cancelable without thirty
(30) days prior written notice to Landlord.
(c) Tenant shall not carry any stock. of goods or do
anything in or about the Premises which will in any way increase
the insurance rates on the Premises, the Building and/or the
Shopping Center. Any such increase shall be paid by Tenant to
Landlord within thirty (30) days after written demand therefor.
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(4) All c.aSualty c~verage insurance carried by Landlord
or Tenant shall prov~de for wa~ver of subrogation against Landlord
Tenant and other tenants in the Shopping Center on the part of th~
insurance carrier. Evidence of the existence of such waiver shall
be furnished by either party to the other party on request.
SIGNS
Section 16. Prior to opening for business, Tenant shall install an
identification sign for the Premises at its cost and expense, whiCh
sign shall comply with Exhibit "FlI. Tenant shall not erect or
install any other signs except as expressly permitted by Landlord.
All permitted signs shall comply with the terms and provisions of
Exhibit "F" and all requirements of appropriate governmental
authorities. All necessary permits or licenses shall be obtained by
Tenant. Tenant shall maintain all permitted signs in good condition
and repair at all times and shall save Landlord harmless from any
injury to person or property arising from the' erection and
maintenance of said signs. Upon vacating the Premises, Tenant shall
remove all signs and repair all damage caused by such removal.
ASSIGNMENT AND SUBLETTING
Section 17. (a) Neither this Lease nor any or all interest herein
shall be sold, mortgaged, pledged, encumbered, assigned,
transferred, or otherwise disposed of in any manner by Tenant,
voluntarily or involuntarily, by operation of law, or otherwise,
nor shall the Premises or any part thereof be sublet, used, or
occupied for the conduct of any business by any third person, firm,
or corporation or for any purpose other than herein authorized,
~except with the prior written consent of Landlord, which consent
Landlord may grant or withhold in its sole discretion. A sale or
sales of fifty percent (50%) or more of the capital stock of Tenant
(if Tenant is a corporation) or of the interest in capital,
profits, or losses of Tenant (if Tenant is a partnership) shall be
deemed to be a prohibited assignment of this Lease within the
meaning of this Section 17. In the event Tenant desires to sublet
the Premises, or any portion thereof, or assign this lease, Tenant
shall give written notice thereof to Landlord at least ninety (90)
days but not more than one hundred eighty (180) days prior to the
proposed commencement date of such subletting or assignment, which
notice shall set forth the name of the proposed subtenant or
assignee, the relevant terms of any sublease or assignment and
copies of financial reports and other relevant financial
information on the proposed subtenant or assignee. Notwithstanding
any permitted assignment or subletting, Tenant shall at all times
remain directly and primarily liable for the payment of the rent
herein specified and for compliance with all of its other
obligations under this Lease. Upon the occurrence of a default
under Section 20 of this Lease, which is not cured within the
applicable grace period, if the Premises or any part thereof are
then sublet, Landlord, in addition to any other remedies provided
herein or by law, may collect directly from such subtenant all
rents due and becoming due to Tenant under such sublease and apply
such rent against any sums due to Landlord from Tenant hereunder.
No such collection directly from an assignee or subtenant shall be
construed to constitute a novation or a release of Tenant from the
further performance of Tenant's obligations hereunder nor shall it.
constitute consent of the sublease or assignment. Any guaranty of
Tenant.s performance executed as consideration for this Lease shall
remain in full force and effect before and after any such
assignment or subletting. Landlord may require Tenant, and Tenant
hereby agrees, to execute a guaranty of this Lease before Landlord
consents to any such assignment or sublease and to cause the
guarantor of Tenant 's Lease to execute an acknowledgment of the
assignment or sublease.
(b) In addition to Landlord's right to consent to any
subtenant or assignee, Landlord shall have the optionj in its sole
discretion, in the event of any proposed subletting or assignment,
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to terminate this ~ease, or,in the case of a proposed subletting of
less. than the entl.re Prem1.ses, to' recapture the portion of the
~remlses to be s';1blet, as of ,the da~e the subletting or assignment
18 to be effectlve. The optl-on shall be exercised by Landlord's
giving Tenant written notice the,reof within thirty (3D) days
following La~dlord/s receipt of Te~ant's written notice as required
above. If thlS Lease shall be termlnated with respect to the entire
Premises, the Term shall end on the date stated in Tenant's notice
as the effective date of, the sublease or assignment as if that date
had been originally fixed in this lease for the expiration of the
Term. If Landlord recaptures only a portion of the Premises, the
Annual Fixed Rent and Addi tional Rent during the unexpired Term
shall abate, proportionately, based on the Annual Fixed Rent and
Additional Rent due as of the date inunediately prior to such
recapture and Percentage Rent shall be calculated using the
adjusted Annual Fixed Rent. Tenant shall, at Tenant's own cost and
expense, discharge in full any outstanding commissibn Obligation
with respect to this Lease and any commissions which may be owing
as a result of any proposed assignment or subletting, whether or
not the Premises are rented by Landlord to the proposed tenant or
any other tenant.
(c) Consent by Landlord to any assignment or subletting
shall not include consent on a subsequent assignment or subletting
of the Premises by Tenant or its assignee' or sublessee or the
consent to the assignment or transferring of any Lease renewal
option rights I space option rights or other special privileges
granted to Tenant hereunder (and such options, rights or privileges
shall terminate upon such assignment or subletting), unless
Landlord specifically grants in writing such options, rights or
privileges to assignee or subtenant. Any sale'assignment, mortgage,
transfer of this Lease or subletting whiCh does not comply with the
provisions of this Section shall be void.
(d) Notwithstanding Landlord's consent. in the event
that Tenant sells, sublets, assigns, or transfers this Lease and at
any time receives periodic' rent and/or other consideration which
exceeds that which Tenant would at that time be obligated to pay to
Landlord, Tenant shall pay to Landlord 100% of the gross increase
in such rent as such rent is received by Tenant and lOO% of any
other consideration received by Tenant from such subtenant or such
assignee.
{e) Should Landlord consent to an assignment or sublease
of this Lease, Tenant, its proposed assignee or subtenant and
Landlord shall execute an agreement prepared by or acceptable to
Landlord wherein the proposed assignee or subtenant agrees to be
bound by the terms and conditions of this Lease, and Tenant will
pay to Landlord on demand a sum equal to all of Landlord's costs,
including reasonable attorneys' fees, incurred in connection with
such assignment I sublease or transfer.
REPAIR AFTER CASUALTY
Section 18. (a) (i) Tenant shall immediately give written notice
to Landlord of any damages caused to the Premises by tire or other
casualty. If the Premises shall be destroyed or so injured, due co
any cause, as to be unfit, in whole or in part, for occupancy, and
such destruction or injury could reasonably be repaired within nine
(9) months from the receipt of insurance proceeds cover'ing such
destruction or injury, then Tenant shall not be entitled to
surrender possession of the Premises, nor, except as hereinafter
provided, shall Tenant's liability to pay rent under this Lease
cease without the TIilltual consent of the parties heTeto. In the case
of any such destruction or injury, Landlord sllall repail- a11
structural portions of t.he Premises with all reasonable speed and
shall complete such repairs within nine (9) months from the receipt
of such insurance proceeds, Notwithstanding the foregoing, Landlord
shall not be required to expend any amount in excess of the net
insurance proceeds for such repairs, Unless such. damage is the
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result of the negligence or willful misconduct of Tenant Dr its
agents, employees or invitees, if during such period Tenant shall
be deprived of the use of all or any portion of the Premises a
proportionate adjustment in the Annual Fixed Rent and Additio~al
Rent shall be made corresponding to the time during which, and the
portion of the Premises of which, Tenant shall be so deprived and
Percentage Rent shall be calculated using the adjusted Annual Fixed
Rent. Tenant shall, within sixty (60) days after completion of
Landlord's work, complete all work to the Premises (without any
allowance from Landlord) necessary to restore the Premises to their
condition on the date'Tenant opened for business to the public.
(ii) If such destruction or injury to the Premises cannot
reasonably be repaired within nine (9) months from the receipt of
insurance proceeds covering such destruction or inju~y, or if the
net insurance proceeds available for such repairs are not
sufficient in Landlord's reasonable determination, Landlord shall
notify Tenant within ninety (90) days after the occurrence of such
destruction or injury whether or not Landlord will repair or
rebuild. If Landlord elects not to repair or rebuild, this Lease
shall be terminated. If Landlord shall elect to repair 0:(" rebuild,
Landlord shall notify Tenant of the time within which such repairs
or reconstruction will be completed, and Tenant shall have the
option, within thirty (30) days after the receipt of such notice,
to elect by written notice to Landlord to either terminate this
Lease and any further liability hereunder, or to extend the Term by
a period of time' equivalent to the time from the Occurrence of such
destruction or injury until the Premises are restored to their
former condition. In the event Tenant elects to extend the Term
Landlord shall restore the structural portions of the Premises t~
their former condition within the time specified in said notice,
Tenant shall complete the work required of Tenant pursuant to
paragraph (i) above within sixty (60) days after completion of
Landlord's work, and Tenant shall not be liable to pay the Annual
Fixed Rent and Additional Rent for the period from the occu~rence
of such destruction or injury until the structural portions of the
Premises are so restored by Landlord and Percentage Rent shall be
calculated using the adjusted Annual Fixed Rent.
(b) In addition to all rights to cancel or terminate
this Lease given to the parties in Section 18 (aL hereof, (aa) if
fifty percent (50%) or more of the gross leasable area of the
Shopping Center is destroyed or damagedj regardless of whether or
not the Premises shall be affected by such damage or destruction,
Landlord shall have the right to cancel and terminate this I,ease as
of the date of such damage or destruction by giving notice thereof
to Tenant within ninety (90) days after the date of such damage or
destruction and (bb) if the Premises are destroyed or damaged
during the last two (2) years of the Term to the extent of fifty
percent (50%) or more of the total square feet of floor area of the
Premises, then either Landlord or Tenant shall have the right to
cancel and terminate this Lease as of the date of such damage or
destruction by giving notice thereof within thirty (30) days after
the date of said damage or destruction. However, if subsection (aa)
above does not apply and Tenant shall, within thirty (30) days
following receipt of Landlord's notice of cancellation pursuant to
(bb) above, give Landlord notice of its intention to renew the
Lease for any additional option periods then available to it under
the terms of this Lease, then the notice of Lanrtlord to tenninat.e
the Lease shall be of no force and effect and Section 18i!i.Lill or
18 (a) (ii) hereof, as the case may be, shall apply. If no additional
option periods are then available to Tenant, this Lease shall
terminate on the date recited in such notice from Landlord.
(c) Notwithstanding anything to the contrary contained
in Sections IS(a) (il, lSla) (iil, and 1QJhl hereof, Landlord may
cancel this Lease with no further liability to Tenant whatsoever in
the event that following any damage, destruction, or injury to the
Premises or the Building, Landlord's mortgagee elects to require
Landlord to make advance payments upon or for any indebtedness
15
seC1,.lred by a mortgage on the Shopping Center or any portion
the:t:'eof.
(d) In the event of any insurance claim against any of
Landlord's insurance policies, Landlord shall have the right to
recover from Tenant Tenant's Proportionate Share of the amount of
any deductible or other loss not reimbursed to Landlord by proceeds
of i?surance.
CONDEMNATION
Section 19. (a) In the event the entire Premises shall be taken
by condemnation or right of eminent domain, this Lease shall
terminate as of the day possession shall be taken by the taking
authority and Landlord and Tenant shall be released from any
further ,liability hereunder. In the event only a portion of the
Premises shall be taken by condemnation or right of eminent domain
and the portion so taken renders the balance unsuitable for the
purpose of this Lease, either Landlord or Tenant shall be entitled
to terminate this Lease, such termination to become effective as of
the day possession of the Premises shall be talcen, provided notice
of $uch termination is given within thirty (30) days after the date
of notice of such taking. If, in such case, this Lease is not
terminated, Landlord agrees to restore the Premises with reasonable
speed to an architectural unit as nearly like its condition prior
to @uch taking as shall be practicable. If during and/or after the
worle of restoration, Tenant shall be deprived of the use of all or
any portion of the Premises, a proportionate adjustment in the
Annual Fixed Rent and Additional Rent shall be made corresponding
to the time during which and the portion of the Premises of which
Tenant is so deprived and Percentage Rent shall be calculated using
the adjusted Annual Fixed Rent in the formula specified in Section
~ hereof.
(b) All damages awarded in connection with the taking of
the premises, whether allowed as compensation for diminution in
val~e to the leasehold, to the reversion and fee of the Premises,
to 'fenant' s leasehold improvements or otherwi se, sh.:1.11 be] ong to
Lanolord. Notwithstanding the foregoing, Tenant shall be entitled
to make a separate ,claim to the condemning authority for damage to
merchandise and fixtures, removal and reinstallation costs, and
moving expenses.
(c) Notwithstanding anything to the contrary contained
in !=iections 19(a) and.1...2...l.Ql hereof, Landlord may cancel this Lease
wit>> no further liability to Tenant whatsoever in the event that
(a) fifty percent (50%) or more of the gross leasable area of the
Shopping Center is taken by condemnation or right of eminent
domain, or (b) following any taking of the Premises or the Building
by condemnation or right of eminent domain, Landlord's mortgagee
elects to require Landlord to make advance payments upon or for any
indebtedness secured by a mortgage on the Shopping Center or any
portion thereof.
LANDLORD'S REMEDIES UPON DEFAULT
Section 20.
(a)
If, at any time after the Commencement Date:
(i) Tenant shall be in default in the payment of rent
or other sums of money required to be paid by Tenant, or in the
performance of any of the covenants, terms, conditions, provisions,
rules and regulations of this Lease, and Tenant shall fail to
remedy such default within ten (10) days of the date when due in
the event the default is as to payment of any sums of money, or,
except as provided in subsection (ii) below, within twenty (20)
days after receipt of written notice thereof if the default relates
to matters other than the payment of moneYi or
(ii) Landlord shall have an audit made for any year in
accordance with Section 5(b) above and the Gross Sales shown by
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Tenant's statement of Gross Sales for such year shall be found to
be understated by more than three percent (3%); or
(iii) Tenant becomes insolvent or makes an assignment
for the benefit of creditors, or if .any guarantor of Tenant shall
become insolvent or make an ass~gnment for the benefit of
creditors, or if a receiver shall be appointed, or if proceedings
under the Bankruptcy Code shall be instituted by or against Tenant
or any guarantor of this Lease and the same shall not be dismissed
by the Court within ninety (90) days after being filed, or if any
event shall happen which, aside from this provision, would cause
any assignment or devolution of Tenant's interest or occupancy
hereunder by operation of law; then it any of the circumstances
described in (i), (ii) or (iii) above should occur, Landlord may,
in addition to all other remedies given to Landlord in law or in
equity, by written notice to Tenant, terminate this Lease or
without terminating this Lease reenter the Premises by summary
proceedings or otherwise and, in any event, dispossess the Tenant,
it being the understanding and agreement of t:;he parties that under
no circumstances is this Lease to be an asset for Tenant's
creditors by operation of law or otherwise. In the event of such
reentry Landlord may, but need not, relet the Premises or any part
thereof for such rent and upon such terms as Landlord, in its sole
discretion, shall determine (including the right to relet the
Premises for a greater or lesser term than that remaining under
this Lease, the right to relet the Premises as a part of a larger
area, and the right to change the character or use made of the
premises). If Landlord decides to relet the Premises or a duty to
relet is imposed upon Landlord by law, Landlord and Tenant agree
that Landlord shall only be required to use the same efforts
Landlord then uses to lease other properties Landlord owns or
manages (or if the Premises is then managed for Landlord, then
Landlord will instruct such manager to use the same eE forts such
manager then uses to lease other space or pr"operties which it owns
or manages) i provided, however, that Landlord (or its manager)
shall not be required to give any preference or priority to the
showing or leasing of the Premises over any other space that
Landlord (or its manager) may be leasing or have available and may
place a suitable prospective tenant in any such available space
regardless of when such alternative space becomes available;
provided, further, that Landlord shall not be required to observe
any instruction given by Tenant about such reletting or accept any
tenant offered by Tenant unless such offered tenant has a
creditworthiness acceptable to Landlord, leases the entire
Premises, agrees to use the Premises in a manner consistent with
this Lease and leases the Premises at the same rent, for no more
than the Term and on the same other terms and conditions as in this
Lease without the expenditure by Landlord for tenant improvements
or broker's commissions. In any such case, Landlord may, but shall
not be requi:t'ed tOI make repairs, alterations and additions in or
to the premises and redecorate the same to the extent Landlord
deems necessary or desirable, and Tenant shall, upon demand, pay
the cost thereof, together with Landlord's expenses of reletting,
including I without limitation, any broker's commission incuX'red by
Landlord. In the event of a reletting, Landlord may apply the rent
therefrom first to the payment of Landlord's expenses, including
attorneys' fees incurred by reason 0'[ Tenant's default and the
expense of reletting (including,' without limitation, repairs,
renovation or alteration of the Premises) and then to the amount of
rent and all other sums due from Tenant hereunder, Tenant remaining
liable for any deficiency. Any and all deficiencies shall be
payable by Tenant monthly on the date herein provided for the
payment of Monthly Installments of Fixed Rent. In determining the
deficiencies and rent whi.ch would be payable by Tenant hereunder
subsequent to default, the annual rent tor each Lease Year of tile
unexpired portion of the Term shall be equal t:o the average Annual
Fixed Rent and Percentage Rent paid by Tenant from the commencement
of the Term to the time of default, or during the preceding three
(3) full calendar years, whichever is shorter.
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(b) No termination of this Lease or any taking or
recovery of possession of the Premises shall deprive Landlord of
any of its remedies or rights of action against Tenant, and Tenant
shall remain liable for all past or future rent, including all
Additional Rent, taxes, insurance premiumsj and other charges and
rent payable by Tenant under this Lease, during the Term. In no
event shall the bringing of any action for rent or other default be
construed as a waiver of the right to obtain possession of the
Premises.
(c) If suit shall be brought for recovery of possession
of the Premisesj for the recovery of rent, or for any other amount
due under the terms and provisions of this Lease, or because of the
breach of any other covenant herein contained on the part of
Tenant, and a breach shall be established, Tenant shall pay to
Landlord all expenses incurred therefor, including reasonable
attorneys' fees.
(dl WHEN THIS LEASE AND ITS TERM SHALL HAVE BlmN
TERMINATED ON ACCOUNT OF ANY DEFAULT HEREUNDER AND ALSO WHEN THE
TERM HEREBY CREATED SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR AS ATTORNEY FOR TENANT AS
WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT AND TO
SIGN AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE
ACTION IN EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING BY,
THROUGH OR UNDER TENANT AND TO THEREIN CONFESS JUDGMENT FOR TilE
RECOVERY BY LANDLORD OF POSSESSION OF THE DEMISED PREMISES TOGETHER
WITH COSTS OF SUIT AND REASONABLE ATTORNEYS FEES OF NOT LESS THAN
ONE THOUSAND DOl1LARS, FOR WHICH THIS LEASE SHALL BE SUF'FICIENT
WARRANT. THEREUPON, IF LANDLORD SO DESIRES, AN APPROPRIATE WRIT OF
POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR
PROCEEDING WHATSOEVER, PROVIDED THAT IF FOR ANY REASON AFTER SUCH
ACTION SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED THAT
POSSESSION OF THE DEMISED PREMISES SHOULD REMAIN IN OR BE RESTORED
TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND
UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON 'rIlE TERMINATION OF
THIS LEASE OR OF TENANT'S RIGHT OF POSSESSION AS HEREINBllFORE SET
FORTH. TO BRING ONE OR MORE FURTHER AMICABLE ACTION OR ACTIONS AS
HEREINBEFORE SET FORTH, TO RECOVER POSSESSION OF TilE DEMISED
PREMISES AND TO CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF
THE DEMISED PREMISES AS HEREINBEFORE PROVIDED, NOTWITHSTANDING
ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, THE RIGHT OF
LANDLORD TO INITIATE AN AMICABLE ACTION OF EJECTMENT AS SPECIFIED
ABOVE SHALL NOT PRECLUDE OR LIMIT LANDLORD'S RIGHT TO INITIATE AN
AMICABLE ACTION FOR RENT,
IN THE EVENT OF DEFAULT HEREUNDER AND ALSO WHEN THE TERM HEREBY
CREATED SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY OF
ANY COURT OF RECORD TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR
ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT AND TO SIGN AN
AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ~CTION
AGAINST TENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT
AND TO THEREIN CONFESS JUDGMENT FOR DAMAGES FOR AMOUNTS DlJE
HEREUNDER TOGETHER WITH COSTS OF SUIT AND ATTORNEYS FEES OF FIVE
PERCENT OF THE AMOUNT CLAIMED, FOR WHICH THIS LEASE SHALL BE
SUFFICIENT WARRANT, THEREUPON, IF LANDLORD SO DESIRES. AN
APPROPRIATE WRIT OF EXECUTION MAY ISSUE FORTHWITH, WITHOUT ANY
PRIOR WRIT OR PROCEEDING WHATSOEVER, PROVIDED THAT IF' FOR ANY
REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED LANDLORD SHALL
HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT
OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE OR OF TENANT'S
RIGHTS AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER
ACTION OR ACTIONS AS HEREINBEFORE SilT FORTH, AND TO CONFESS
JUDGMENT AS HEREINBEFORE PROVIDED. NOTWITHSTANDING ANYTHING
CONTAINED IN THIS LEASE TO TilE CONTRARY, THE RIGHT OF LANDLORD TO
INITIATE AN ACTION AS SPECIFIED ABOVE SHALL NOT PRECLUDE OR LIMIT
LANDLORD'S RIGHT TO INITIATE ANY OTHER ACTION,
(e) In any amicable act.ion of ejectment or for rent and
other sumsj Landlord shall first cause to be filed .in such action
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an affidavit made by Landlord or someone acting for Landlord,
setting forth the facts necessary to authorize the entry of
judgment and if a true copy of this Lease (and of the truth of the
copy suCh affidavit shall be sufficient evidence) shall be filed in
such suit, action or actionsj it shall not be necessary to file the
original as a warrant of attorneYj any rule of courtj custom or
practice to the contrary notwithstanding.
(f) Tenant expressly waives:
(i) The right to delay execution on any real estate
that may be levied upon to collect any amount which may
become due under the terms and conditions of this Lease and
any ~ight to have the same appraised. Tenant authorizes the
Prot110notary or Clerk to enter a writ of execution or other
process upon Tenant's voluntary waiver and further agrees
that said real estate may be sold on a writ of exe,cution or
othe:C process.
(iil
Tenant Act
thereto.
All rights under the Pennsylvania Landlord and
of 1951 and all supplements and amendments
(iii) The right to three (3) months and fifteen (IS)
or thirty (30) days' notice required under certain
circumstances by the Pennsylvania Landlord and Tenant Act of
1951, Tenant hereby agreeing that the respective notice
periods provided for in this Lease shall be sufficient in
either or any such case.
(g) The parties hereto shallj and they hereby do,
waive trial by jury in any action, proceeding, or counterclaim
brought by either of the parties against the other on any matters
whatsoever arising out ofj or in any way connected with, this
Leasej the relationship of Landlord and Tenantj Tenant's use or
occupancy of the Premises, and/or any claim of injury or damage
arising out of the Premises, the Building, or the Shopping Center.
(h) All rights and remedies provided herein or
otherwhle existing at law or in equity are cumulative, and the
exercise of one or more rights or remedies by either party shall
not preClude or waive its right to the exercise of any or all of
the others.
DISCHARGE OF LIENS
Section 21. (a) The Tenant shall not causej suffer, or permit the
Premise~, Building, or the Shopping Center to be encumbered by any
liens of mechanic's, laborers, or materialmenj any security
interescs, or any other liens. Tenant shallj whenever and as often
as any such liens are filed against the Premises, the Buildingj or
the Shopping Center and are purported to be for labor or material
furnished or to be furnished to Tenant, discharge without demand by
Landlord the same of record within ten (10) days after the date of
filing by payment, bonding or otherwise, as provided by law. Tenant
shall, upon reasonable notice and request in writing from Landlord,
also defend against Landlordj at Tenantjs sole cost and expense,
any actionj suit, or proceeding which may be brought on or for the
enforcement of any such lien and shall pay any damages and satisfy
and discharge any judgments entered in such actionj suit, or
proceeding and shall save harmless Landlord from any liability,
claim, or damages resulting therefrom. In default of Tenant
procuring the discharge of any such lien, Landlord may, without
further notice, procure the discharge thereof by bonding or payment
or othe~wisej and all costs and expenses which Landlord may incur
in obtaining such discharge shall be paid by Tenant as Additional
Rent within ten (10) days of any demand therefor.
(b) Nothing in this Lease, nor any approval by Landlord
of any of Tenant's alterations or contractors, shall be deemed or
19
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construed in any way as constituting consent by Landlord for the
making of any alterations or additions by Tenant, or constituting
a request by Landlord, expressed or implied, to any contractor
subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for the use or benefit of
Landlord.
LIABILITY OF LANDLORD
Section 22. If Landlord shall fail to perform any covenant, term,
or condition of this Lease, and if Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only
out of the proceeds of sale received upon execution of such
judgment and levy thereon against the right, title, and interest of
Landlord in the Shopping Center as the same may then be encumbered
and neither Landlord nor any of its partners shall be liable for
any deficiency. It is understood that in no event shall Tenant have
any right to levy execution against any property of Landlord other
than its interest in the Shopping Center. Such right of execution
shall be subordinate and subject to any mortgage or other
encumbrance upon the Shopping Center.
RIGHTS OF LANDLORD
Section 23. {a} Landlord shall have the right, but not the duty,
at all reasonable times, by itself or through its duly authorized
agents I to go upon and inspect all or any part of the Premises and,
at Landlord's option, to ma]<:e repairs, alterations, and additions
to the Premises, the Building, or any part thereof, or to show the
Premises or the Building to lenders or to prospective purchasers or
tenants.
(b) If Tenant shall fail to fulfill any of its
obligations hereunder, Landlord shall have the right to fulfill
such obligation and any amounts so paid by Landlord are agreed and
declared to be I1Additional Rentll due and payable .to Landlord from
Tenant with the next installment of Monthly Installment of Fixed
Rent due thereafter under this Lease. Any such amounts which shall
be paid by Landlord on behalf of Tenant shall hear interest from
the date so paid by Landlord at the rate of eighteen percent (18%)
per annum or at the prime rate of interest then being charged by
Chase Manhattan .Bank N.A., a national banking association,
whichever is higher provided that in no event shall such rate to be
charged Tenant exceed the rate otherwise permitted by law.
{c} All rights of Landlord hereunder shall be deemed to
accrue to the benefit of Landlord's mortgagee, if any.
SUBORDINATION TO MORTGAGE
Section 24. (a) Tenant understands, acknowledges and agrees that
this Lease is and shall be subordinate to any mortgage, ground
lease or other lien or restriction of record now existing or
hereafter placed on or affecting the Premises, the Building, or the
Shopping Center, or any part thereof, and to any renewals,
refinancing or extensions thereof and to all advances made or
hereafter to be made upon the security thereof. This subordination
provision shall be self-operative and no further instrument of
subordination shall be required by any mortgagee or' lender.
However, Landlord is hereby irrevocably vested with full power and
authority to subordinate this Lease to any mortgage or other lien
now existing or hereafter placed upon the Premises, the Buildillg,
or the Shopping Center as a whole. Further, Tenant agrees, upon the
demand or request of any party in interest, to execute promptly
such further instruments or certificates as may be necessary to
carry out the intent of this Section.
(b) Notwithstanding the provisions of Section---1.1..Le.l
hereofj any mortgagee may at any time subordinate the lien of its
mortgage to the operation and effect of this. Lease without
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obtaining Tenant's consent thereto, by giving the Tenant written
notice thereof, in which event this Lease shall be deemed to be
senior to such mortgage without regard to their respective dates of
execution, delivery, and/or recordation among the land records of
the county in which the Shopping Center is located, and thereafter
such mortgagee shall have the same rights as to this Lease as it
would have had, were this Lease executed and delivered before the
execution of such mortgage.
(cl Tenant shall, within ten (10) days from request by
Landlord, execute and deliver to such persons as Landlord shall
specify a statement in recordable form certifying that this Lease
is unmodified and in full force and effect (or, if there have been
modifications. that the same is in full force and effect as so
modified), stating the dates to which rent and other charges
payable,under this Lease have been paid, stating that Landlord is
not in default hereunder (or, if Tenant alleges a default, stating
the nature of such alleged default) and further stating such other
matters as Landlord or its mortgagee(s) or proposed purchaser(s)
shall reasonably require.
(d) In the event any proceedings are brought for
foreclosure or in the event of the exercise of the power of sale
under any mortgage or deed of trust, Tenant shall attorn to the
purchaser in any such foreclosure or sale and recognize such
purchaser as landlord under this Lease.
NO WAIVER BY LANDLORD
Section 25. No waiver of any of the terms, covenants, provisions,
conditions, rules, and regulations imposed by this Lease, and no
waiver of any legal or equitable relief or remedy, shall be implied
by the failure of Landlord to assert any rights, declare any
forfeiture, or for any other reason. No waiver of any of said
terms, provisions, covenants, conditions, rules, and regulations
shall be valid unless it shall be in writing signed by Landlord. No
waiver by Landlord or forgiveness of performance by Landlord in
respect to one or more tenants of the Building shall constitute a
waiver or forgiveness of performance in respect to Tenant.
VACATION OF PREMISES
Section 26. Tenant shall deliver and surrender to Landlord
possession of the Premises (including all of Tenant's permanent
work upon and to the Premises, all replacements thereof, and all
fixtures permanently attached to the Premises during the Term)
immediately upon the expiration of the Term or the termination of
this Lease in any other way in as good condition and repair as the
same were on the Commencement Date {loss by any insured casualty
and ordinary wear and tear only excepted) and deliver the keys at
the office of Landlord or Landlord's agenti Drovided, however, that
upon Landlord's request made at least thirty (30) days prior to the
end of the Term, or the date Tenant is otherwise required to vacate
the Premises, Tenant shall remove all fixtures and equipment
affixed to the Premises by Tenant, and restore the Premises to
their condition on the Commencement Date {loss by any insured
casualty and ordinary wear and tear only excepted}, at Tenant's
sole expense. Such removal shall be performed prior to the earlier
of the end of the Term or the date Tenant is required to vacate the
Premises.
MEMORANDUM OF LEASE
Section 27. Upon request by Landlord, Tenant hereby agrees to
execute for recordation a memorandum of this Lease.
RENT DEMAND
Section 28. Every demand for rent wherever and whenever made shall
have the same effect as if made at the time it falls due and at the
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place of payment. After the service of any notice or commencement
of any suit, or final judgment therein, Landlord may receive and
collect any rent due, and such collection or receipt shall neither
operate as a waiver of nor affect such notice, suit, or judgment.
NOTICES
Section 29. Any notices, requests, or consents required to be
given by or on behalf of Landlord or Tenant shall be in writing and
shall be sent overnight courier or by registered or certified
United States mail, return receipt requested, postage prepaid,
address~d to the parties hereto at the respective addresses set
forth on the Reference Page, or at such other address as may be
specified from time to time, in writing. Such notice shall be
deemed given when it is deposited in an official United States Post
Office, postage prepaid. Copies of all notices to Landlord shall be
sent to:
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444 Park Avenue South, Suite 302
New York, NY 10016
APPLICABLE LAW AND CONSTRUCTION
Section 30. The laws of the Commonwealth of Pennsylvania shall
govern the validity, performance, interpretation, and enforcement
of this Lease. The invalidity or unenforceability of any provision
of this Lease shall not affect or impair any other provision. All
negotiations, considerations, representations, and understandings
between the parties are incorporated herein. This Lease may be
modified or altered only by agreement in writing between the
parties. Tenant shall have no right to quit the Premises or cancel
or rescind this Lease except as expressly granted herein. This
Lease has been negotiated by Landlord and Tenant and this Lease,
together with all of the terms and provisions hereof, shall not be
deemed to have been prepared by either Landlord or Tenant, but by
both equally. If any provision of this Lease is held to be invalid
or unenforceable, the validity and enforceability of the remainder
of this Lease shall not be affected thereby.
FORCE MAJEURE
Section 31. In the event that either party hereto shall be
delayed, hindered in, or prevented from performing any act required
hereunder by reason of strikes, lockouts, inability to procure
materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war, or any other reason of a
like nature not the fault of the party delayed in performing such
act! then performance of such act shall be excused for the period
of the delay and the period allowed for the performance of such act
shall be extended for a period equivalent to the periOd of such
delay. Notwithstanding anything contained herein to the contrary,
Tenant shall not be excused from the payment of rent or other sums
of money which may become due under the terms of this Lease.
LANDLORD'S LIEN
Section 32. (a) Tenant hereby grants to Landlord a lien and
security interest on all property of Tenant now or hereafter placed
in or upon the Premises, and such property shall be and remain
subject to such lien and security interest of Landlord for payment
of all rent and other sums agreed to be paid by Tenant herein.
Landlord's lien, however, shall not be superior to a lien from a
lending institution, supplier or leasing company, if such Jendjll9
institution, supplier or leasing company has a perfected security
interest in the equipment! furniture or other tangible personal
property which originated in a transaction whereby Tenant acquired
same.
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(b) The provisions of this Section relating to such lien
~nd security interest shall constitute a security agreement under
~nd subject to the Uniform Commercial Code of the state wherein the
Shopping Center is located, so that Landlord shall have and may
enforce a security interest on all property of Tenant now or
l1ereafter placed in or on the Premises, in addition to and
cumulative of Landlord's liens and rights provided by law or by the
other terms and provisions of this Lease.
(c) Tenant agrees to execute as debtor such financlng
statement or statements and such other documents as Landlord may
now or hereafter request in order to protect or further perfect
~andlord's security interest. Notwithstanding the above, Landlord
,ahall neither sell nor withhold from Tenant Tenant's business
:eecords.
QUIET ENJOYMENT
Section 33. Landlord hereby covenants and agrees that if Tenant
:3ha11 perform all of the covenants and agreements herein stipulated
t:o be performed by Tenant, Tenant shall at all times during the
continuance - hereof have peaceable and quiet enjoyment and
possession of the Premises without any manner of let or hindrance
trom Landlord or any person or persons claiming by, through, or
under Landlord, subject, always, to the terms and provisions of
chis Lease.
HOLDING OVER
Section 34. If at the expiration of the Term or any renewal
chereof Tenant continues to occupy the Premises, such holding over
@hall not constitute a renewal of this Lease, but Tenant shall be
a. tenant from month to month upon all of the terms, provisions,
covenants, and agreements hereof, except that Landlord may, in its
@ole discretion, increase the amount of the Annual Fixed Rent
chereafter due hereunder to an amount equal to 200% of the Annual
Fixed Rent being paid immediately prior to such expirations.
BROKERS
8ection 35. Tenant represents and warrants that it has not dealt
with any real estate broker other than the real estate broker{s)
listed on the Reference Page in connection with this Lease.
I~andlord shall pay any commission or fee due such broker(s) as a
~esult of this Lease. Tenant agrees to indemnify Landlord against,
and hold it harmless from, all liabilities arising from any claim
~esulting from its having dealt with any other broker in connection
~ith this Lease.
9APTIONS
gection 36. All paragraph titles or captions contained in this
~ease are for convenience only and shall not be deemed part of the
context of this Lease.
VARIATION IN PRONOUNS
Section 37. All of the terms and words used in this IJease,
!'egardless of the number and gender in which they are used, shalJ
be deemed and construed to include any other number or gender, as
t:.he context or sense of this Lease or any paragraph or clause
l1erein may require, as if such terms and words had been fully and
properly written in the appropriate number and gender.
LENDERS' APPROVAL
Section 38. Notwithstanding anything contained herein to the
contrary, Landlord's obligations and Tenant I S rights under this
:Lease are conditioned upon its approval by Landlord's construction
lender and permanent lender. In the event Landlord is unable to
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obtain such approvals, Landlord shall notify Tenant of the basis
therefor and Tenant shall have thirty (30) days in which to agree
to any changes requested by such lender in order to make the within
Lease acceptable to it. In the event Tenant fails to agree to any
such changes within said thirty (30) day period, Landlord may
terminate this Lease within thirty (30) days thereafter. In such
event, both parties shall be released from any further liability
under this Lease.
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SECURITY DEPOSIT
Section 39. The Security Deposit shall be held by Landlord without
liability for 'interest and as security for the performance by
Tenant of Tenant's covenants and obligations under this Lease, it
being expressly understood that the Security Deposit shall not be
considered an advance payment of rental or a measure of Tenant's
damages in case of default by Tenant. The Security Deposit shall be
paid' to LaI1dlord upon execution of this Lease. Landlord may, in its
sole discretion, from time to time without prejudice to any other
re~edy, use the Security Deposit to the extent necessary to make
good any default under this Lease or to satisfy any other covenant
or obligat:.ion of Tenant hereunder; orovided, however, that no
portion of the Security Deposit shall be applied towards payment of
the last month's rent hereunder without the prior written consent
of the Landlord's mortgagee. Following any such application of the
Se'curity'Deposit, Tenant shall pay to Landlord on demand the amount
so applied in order to restore the Security Deposit to its original
amount. If Tenant is not in default at the termination of this
Leasel the balance of the Security Deposit remaining after any such
application shall be returned by Landlord to Tenant after deduction
therefrom any unpaid obligation of the Tenant to the Landlord as
may arise under this Lease, including, without lindtation, the
obligation to restore the Premises pursuant to Section 26 hereof,
If Landlord transfers its interest in the Premises during the term
of this L@ase, Landlord may assign the Security Deposit to the
transferee and thereafter Landlord shall have no further liability
to Tenant tor the return of such Security Deposit, and Tenant shall
look solely to the transferee for return of such Security Deposit.
NO INCOME PARTICIPATION
Section 40. Neither Tenant nor any other person having an interest
in the possession, use, occupancy or utilization of the Premises
shall enter into any lease, sublease, license, concessioll or other
agreement for use, occupancy or utilization of the Premises which
provides for rental or other payment for such use, occupancy or
utilization based in whole or in part on the net income or profits
derived by any person from the Premises or portion thereof leased,
usedl occupied or utilized (other than an amount based on a fixed
percentage or percentages of receipts or sales) I and that any such
purported lease, sublease, license, concession or other agreement
shall be absolutely void and ineffective as a conveyance of any
right or interest in the possession, use, occupancy or utilization
of any part of the mortgaged Premises.
HAZARDOUS SUBSTANCES
Section 41. In addition to, and not in limitation of any other
provision of this Lease, Tenant agrees not to generate, store, use
treat or dispose ofl nor to allow, suffer or permit the generatioll,
storage, use, treatment or disposal of, any "hazardous waste" or
Ithazardous substance II (as those terms are defined in the Resource
Conversation and Recovery Act, 42 U,S.C Sections 6901 et seo., as
amended (ltRCRAI1) or the Comprehensive Environmental Response,
Compensation, and Liability Actl 42 D.S.C. Sections 9601, et ~.,
as amended (IICERCLAll), and any rules and regulations now or
hereafter promulgated under either of such acts) o,r allY pol] utant
or other contaminant on, in from or about the Premises or the
Shopping Center, which hazardous material is prohibited or
controlled by any federal, state or local law, ordinance, rule or
24
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EXHIBIT IlA"
ALL that certain lot or tract of land situate in Hampden Township,
Cumberland County, Pennsylvania more fully bounded and described as
follows, to wit:
BEGINNING at an iron pin (found) on the southern right-af-way line
of the Carlisle Pike (S,R. 1010, 50 R.O,W.I and the line of lands
NIP of William C. Rowland, Jr. thence proceeding in a generally
southern direction South 05 degrees, 45 minutes, 59 seconds East
1173.92 feet to a point on the northern right-at-way line of S.R.
0011 {120 R.O.W.lj thence along said right-af-way line North 83
degrees, 59 minutes, 24 seconds West 5~6.43 to an iron pin (found)j
thence by same on a curve to the right having a radius of 3079,36
feet and an arc length of 1237.06 feet to a point on the western
right-of-way line of Sporting Hill Road (S.R. 1013, 40 R.O.W.)i
thence along said right-of-way line North 05 degrees,' 30 minutes,
4S seconds West 221.48 feet to a point i thence by lands N/F of
David R. Miller North 83 degrees, 04 minutes, 02 seconds East
121.68 feet to an iron pin (found); thence by lands N/F of D.E.S.
Associates and Universal Restaurants, Inc. North 86 degrees, 33
minutes, 17 seconds East 441.20 feet to an iron pin (found); thence
by lands of Universal Rest.aurant.s, Inc. North 03 degrees, 14
minutes, 44 seconds West 415.88 feet to a point on the southern
right-of-way line of the Carlisle Pike (S.R. 1010, 50 R.O.W.);
thence by said right-of-way line North 86 degrees, 36 minutes, 37
seconds East 1082.77 feet to an iron pin (found) being the point
and place of BEGINNING.
Containing 31.963 Acres.
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EXHIBIT "B" - DESCRIPTION OF PREMISES
The boundaries and location of the Premises, utilities, paved
lng:t"ess, esp:-ess, etc., as shown 011 thls site plan Sets forth the
~JelJ(~r:al layollt of the shopping center and shall not be n warranty
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PREMISES WILL BE DELIVERED IN
AN liAS IS" CONDITION.
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EXHIBIT "DIl
TENANT'S WORK
I . WORK BY TENANT
A. GENERAL REOUIREMENTS,
1. APPROVALS, The Tenant shall submit ta the
Landlord and obtain full approval of all plans,
specifications and work including all roof
openings I signs I etc. Any damage done by Tenant
shall be paid for by the Tenant.
Landlord must approve any and all materials,
equipment and fixtures which become a permanent
part of the structure.
Tenant shall furnish Landlord with a list of all
contractors Tenant intends to use to work in his
premises. Landlord reserves the right to approve or
disapprove of any and all of Tenant's contractors,
All contractors engaged by Tenant as peDmitted by
Landlord shall be bondable, license contractors,
possessing good labor relations, capable of
performing quality workmanship and working in
harmony with Landlord's and other tenants'
contractors on the job. All work shall be
coordinated with the general project work.
The design of all work and installation undertaken
by Tenant shall be approved by the Landlord. All
work underta](en shall be at the Tenant's expense
and shall not damage or weal<:en the structural
strength of the building or any part thereof, and
shall be done in a first-class worknmnlike manner
and in accord with all applicable Federal, State,
County and local municipal statutes, ordinances,
regulations, laws and codes, All tenant
construction shall be non-coniliustible, and no
combustible materials of any nature will be
permitted above the finished ceiling.
PLANS: The Tenant shall deliver to the Landlord
within twenty (20) days after the execution of this
Lease, its plans and specifications for work within
the leased space.
PERMITS. INSPECTIONS, FEES. ETC, , All warl,
installed by Tenant shall be coordinated with and
completed so as not to interfere with Landlord's
construction schedule nor any other tenant's
activities. Tenant shall secure and pay for any
necessary building permits, inspections and fees.
Prior to start of work, Tenant shall forward a copy
of all required permits to the Landlord.
2. STOREFRONTS: Should Tenant desire an
individualized storefront other than Landlord's
standard, the additional cost of designing and
constructing same shall be done at the Tenant's
expense. The following crit.eria shall apply for
same.
a. Materials, designs and color selections shall
be subj eet to the prior approval of Landlord
and Landlord's archit.ect.
b. No portion of the storefront may protrude
beyond the front line of the leased premises
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nor encroach in any manner into the covered
sidewalk.
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C. No unfinished wall area will be permitted on
the storefront.
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d. Storefront material shall be selected for
durability and freedom from maintenance.
e. Temporary storefront: If a Tenant's work is not
completed within the time required by this
Lease (or, in any event, is not completed on
the grand opening date), Landlord may, at
Tenant's expense, install a temporary
storefront or barricade.
3,
INSURANCES: Tenant shall secure, pay for and
maintain, or cause its contractor(s) to secure, pay
for and maintain, as the case may be, during the
continuance of construction and fixturing work
within the leased premises, Workman Compensation
Employers Liability Insurance; Comprehensive
General Liability Insurance (including Contractors
Protective Liability); Owner's Protective Liability
Insurance, insuring Tenant against any and all
liability to third parties for damage due to bodily
injury and property damage liability; and Tenant's
Builder's Risk Insurance; and statutory Automobile
Insurance.
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All of the foregoing insurance policies shall be
with an insurance company approved by Landlord and
the insurance limits contained therein shall be
acceptable to Landlord. In addition, the aforesaid
Tenant's insurance policies shall name IJandlordf
its Lender, its Architect and its General
Contractor as an additional insured and Tenant' s
contractor shall deliver necessary evidence of all
of the foregoing policies to Landlord.
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NO WORK SHALL BEGIN UNTIL ALL INSURANCE
CERTIFICATES ARE IN POSSESSION OF LANDLORD,
4. Each tenant shall be responsible for the cost of
delivery and arranging all receipt and unloading of
all materials and equipment pertaining to his work.
5. CLEANING OF PREMISES: The Tenant shall, at all
times, keep the premises free from accumulations of
waste materials and/or rubbish caused by his
employees, workers, or contractors. Tenant shall
maintain the premises in a clean and orderly
condition during construction and merchandising.
Tenant shall promptly remove all unused
const.ruction materials, equipment, shipping
containers, packaging, debris, and flammable waste
from the Shopping Center. Tenant shall contain all
construction materials, equipment; fixtures,
merchandise, shipping containers and debris within
the premises. The common exterior areas of the
Shopping Center shall be clear of Tenant's
equipment, merchandise, fixtures, refuse and debris
at all times. Trash storage within the premises
shall be confined to covered metal contains. Tenant
is responsible for the removal of all trash and
debris from Tenant's premises.
6.
CERTIFICATE OF OCCUPANCY,
secure a Certificate of
The Tenant shall
Occupancy from the
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jurisdictional authorities in sufficient time to
allow Tenant to open the premises in accordance
with the opening requirements of this Lease. A copy
of the Certificate of Occupancy shall be forwarded
to the Landlord.
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7. VIOLATIONS: In the event the Tenant is notified
of any violations of codes, ordinance regulations,
requirements or guidelines either by the
jurisdictional authorities or by the Landlord,
Tenant shall, at its expense, correct such
violations within seven (7) calendar days after
such notification.
8. ROOF OPENINGS: Any proof opening required by the
Tenant will be performed by Landlord's roofing
contractor at the Tenant's expense. Such openings
will include supporting structures, angles, curbs,
flashings, ducts, vents and grilles. Landlord may
refuse to approve any openings which, in Landlord's
jUdgement, exceed the capability of the structural
system.
9. LIENS: Tenant shall not permit any mechanic's
liens to attach to the leased premises or the
Shopping Center development in which the premises
are located on account of any labor or materials
furnished or supplied to 'the demised premises in
connection with Tenant's Work. In the event that
such a lien is attached, Tenant shall forthwith
cause the same to be discharged or in lieu thereof
furnish a bond for the benefit of Landlord issued
by a duly licensed surety company authorized to do
business in the state the project is located, which
by its terms indemnifies and holds the Landlord
harmless from the effects of such lien. In
addition, Tenant shall provide Landlord with final
waivers of lien, materialman certificates,
affidavits and sworn statements from all tenant's
contractors and suppliers within thirty days of
completion of work.
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10. LANDLORD'S RIGHT OF ACCESS TO PREMISES: Landlord,
Landlord's agent, an independent contractor, or an
authorized utility company, as the case may be,
shall have the right, subject to Landlord's written
approval, to run utility lines, conduits or duct
work, where necessary or desirable, t11rough ceiling
space, column space or other parts of the demised
premises and to repair, al ter, replace or remove
the same, all in a manner which does not interfere
unnecessarily with Tenant's use thereof.
B.
GENERAL WORK,
The Tenant will furnish and install the faU owing items
of work at its sole cost and expense:
1. Interior partitions within the leased areas, except
for the toilet room walls.
2. Floor coverings,
3. Interior finishing of wall surfaces including
priming, painting, staini.ng and wall coverings.
4. Display window backs, display window floor~, display
window ceilings, and display window lighting
fixtures and power for the same.
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Install ceiling tiles. Landlord will stockpile
tiles in Premises.
6.
PLUMBING WORK, Any plumbing facilities in excess
of that provided by the Landlord, such as increase
in size of service, drinking fountains, additional
toilet facilities, janitor's sink, hose bibbs, lab
sinks, special fixturing and outlets, will be
provided, installed and connected at Tenant's
expense. Tenant will also pay for any increases in
water and sewer capital charges or any other
related charges imposed by the municipality or
Landlord above the municipality's or Landlord's
standard charge for a retail store due to the
Tenant's use of the premises. i. e. restaurants I
beauty salon, etc. Tenant will provide fire
exti;nguishers as required by building code and
insurance underwriters.
7.
HEATING. VENTILATING AND AIR CONDITIONING, Added
capacities to roof top HVAC units, if necessary,
shall be furnished and installed by the Tenant.
SPRINKLER WORK: Cost of additional pipe and heads
required as a result of interior store partitions,
mezzanine areas, unusual use of premises or tenant
fixtures will be charged to Tenant.
8.
9,
ELECTRICAL WORK: Tenant shall furnish,
pay for all electrical work other
furnished by Landlord, including but
to:
install and
than items
not limited
a. Increased size of incoming electrical service
and panel.
b. Telephone and communication system.
c. Burglar alarms and/or warning systems.
d. Eme~gency generator.
e. Tenant's store signs and controlling time
clocks.
f. High voltage outlets.
g. Floor outlets.
h. Music systems.
i. Additional exit signs and emergency lighting
units necessitated by Tenant's fixtures and
interior partitions.
10, MISCELLANEOUS WORK,
a. All trade fixtures, cabinets, shelving,
counters, appliances, fur-ni ture, fllr~nishings,
etc., signs (interior and exterior) and other
personal property shall be new and of first
quality and shall be furnished and installed by
Tenant.
b. Toilet paper holders, soap dispensers, mirrors,
shelves, towel dispensers, etc. shall be
provided by the Tenant.
c. Tenant at his expense shall sound insulate, to
extent required by the nature of its business,
the demising walls so as not to permit sound to
emanate outside the premises.
11,
SIGNS: The Tenant shall furnish, install and
~ct identification signs at locations provided
at canopy fascia at Tenant's expense.
Canopy fascia sign design, lighting and sign copy
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color shall be subject to Landlord's approval.
Canopy signs shall be in conformance with the
detailed sign criteria, as prepared by Landlord's
Architect.
Prior to fabrication, sign plans and specifications
must be submitted for Landlord's approval.
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EXHIBIT "Ell
RULES AND REGULATIONS
1. Landlord reserves the right to change from time to time the
format of the signs Or lettering on the signs, and to require
replacement of any signs previously approved pursuant to
Section 16 to conform to Landlord's new standard sign criteria
established pursuant to any remodeling of the Shopping Center.
2. Tenant shall not, without the prior written consent of
Landlord (i) paint, decorate or make any changes to' the store
front of the Premises; or (ii) install any exterior lighting,
awning or protrusions, signs, advertising matter, decoration
or painting visible from the exterior of the Premises or any
coverings on exterior windows and doors, excepting only
dignified displays of customary type in store windows. If
Landlord objects in writing to any of the foregoing, Tenant
shall immediately discontinue such use.
3. Tenant shall not (i) conduct or permit any fit;"e, bankruptcy or
auction sale (whether real or fictitious) unless directed by
order of a court of competent jurisdiction, or conduct or
permit any legitimate or fictitious lIGoing Out of Business"
sale nor represent or advertise that it regularly or
customarily sells merchandise at "manufacturer'sll,
"distributor' Sll J or lIwholesalel1, "warehousell, or similar
prices or other than at lIoffpricelr or at I1retailll prices; (ii)
use, or permit to be used, the malls or sidewalks adjacent to
such Premises, or any other area outside the Premises for
solicitation or for the sale or display of any merchandise or
for any other business, occupation or undertaking, or for
outdoor pub:;I.ic meetings, circus or other entertainment (except
for promotional activities in cooperation with the management
of the Shopping Center or an association of merchants within
the ShoppinS Center); (iii) use or permit to be used any sound
broadcasting or amplifying device which can be heard outside
of the Premises or any flickering lights; (iv) operate or
cause to be operated any 11 elephant trainsl1 or similar
transportation devices; or (v) use or permit to be llsed any
portion of the Premises for any unlawful purpose or use or
permit the use of any portion of the Premises as regular
living quarters, sleeping apartments or lodging rooms or for
the conduct of any manufacturing business.
4. Tenant shall at all times keep the Premises at a temperature
sufficiently high to prevent freezing of water pipes and
fixtures. Tenant shall not, nor shall Tenant at any time,
r permit any occupant of the Premises to: (i) use, operate or
maintain the Premises in such manner that any rates for any
insurance carried by Landlord, or the occupant of any premises
within the Shopping Center, shall thereby be increased; or
(ii) commit waste, perform any acts or carryon any practices
which may injure the Shopping Center or be a nuisance or
menace to other tenants in the Shopping Center.
S. Tenant shall not obstruct any sidewalks, passages, exits,
entrances, truck ways, loading doc].cs, package piCk-Up
stations, pedestrian sidewalk and ramps, first aid and comfort
stations, or stairways of the Shopping Center. No tenant and.
no employee or invitee of any tenant shall go upon the roof of
the Shopping Center without notifying the Landlord.
6. Landlord will furnish Tenant free of charge with two keys to
each door lock in the Premises. Landlord may maJ<:e a ~~easonable
charge for any additional keys. Tenant, upon the termination
of its tenancy, shall deliver to Landlord the keys of all
doors which have been furnished to Tenant, and in the event of
loss of any keys so furnished, shall pay Landlord therefor.
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7. If Tenant requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain and comply with
Landlord's instructions in their installation.
8. Tenant shall not place a load upon any floor which exceeds the
designed load per square foot or the load permitted by law.
Landlord shall have the right to prescribe the weight, size
and position of all equipment, materials, furniture or other
property brought into the Premises. Heavy objects shall stand
on such platforms as determined by Landlord to be necessary to
properly distribute the weight. Business machines and
mechanical equipment belonging to Tenant which cause noise or
vibration that may be transmitted to the structure of Tenant's
store or to any other space to such a degree as to be
objectionable to Landlord or to any tenants shall be placed
and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other similar devices. The persons employed to
move equipment in or out of Tenant's store must be acceptable
to Landlord. Landlord will not be responsible for loss of, or
damage to, any equipment or other property from any cause, and
all damage done to the Shopping Center by maintaining or
moving such equipment or other property shall be repaired at
the expense of Tenant.
9. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that
for which they were constructed. No foreign substance of any
kind whatsoever shall be thrown therein, and the expense of
any breakage, stoppage or damage resulting from the violation
of this rule shall be borne by the tenant who, or whose
employees or invitees, shall have caused it.
10. Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of
Tenant's store. Tenant shall not interfere with radio or
television broadcasting or reception from or in the Shopping
Center or elsewhere.
1.1.. Except as approved by Landlord, Tenant shall not damage
partitions, woodwork or plaster or in any way deface the
Premises. Tenant shall not cut or bore holes for wires, Tenant
shall not affix any floor covering to the floor of the
Premises in any manner except as approved by Landlord. Tenant
shall repair any damage resulting from noncompliance with this
rule.
12. Tenant shall not install, maintain or operate upon the
Premises or in any Common Areas under the exclusive control of
Tenant any vending machine or video game without Landlord's
prior written consent.
13. Tenant shall store all its trash and garbage in containers
within its Premises and/or in the portion of the Common Areas
designated by Landlord. Tenant shall not place in any trash
box or receptacle any material which cannot be disposed of in
the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in
accordance with directions issued from time to time by
Landlord.
14. No cooking shall be done or pennitted by Tenant on the
Premises without Landlord's prior written consent, except for
brewing coffee and similar beverages and use of a single
microwave oven by employees only and in any event will not
permit odors to emanate from the Premises provided that such
use is in accordance with all applicable federal, state and
city laws, codes, ordinances, rules and.regulations.
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15. Tenant shall not use in any space any hand trucks except those
equipped with rubber tires and side guards or such other
material-handling equipment as Landlord may approve. Tenant
shall not bring any other vehicles of any kind into Tenant's
store.
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16. Employees of Landlord shall not perform any work or do
anything outside of their regular duties unless under special
instructions from Landlord.
17. All loading of goods shall be done only at such times, in the
areas, .and through the entrances, designated for such purposes
by ,Landlord. The delivery or shipping of merchandise, supplies
and fixtures to and from the leased premises shall be subject
to such rules and regulations as in the judgment of the
Landlord, are necessary for the proper operation of the leased
premises or the Shopping Center.
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18. Tenant and Tenant's employees shall park their cars only in
such portion of the parking area designated for those purposes
by the Landlord. Tenant shall furnish Landlord with state
automobile license numbers assigned to Tenant's employees
within five (5) days after taking possession of the premises
and shall thereafter notify the Landlord of any changes within
five (5) days after changes occur. In the event: tl1at the
Tenant or its employees fail to park their cars in designated
parking areas as aforesaid, then the landlord, at its option,
shall charge the Tenant Ten Dollars ($~O .00) per day or
partial day per car parked in any area other than that
designated.
19. Landlord may waive anyone or more of these Rules and
Regulations for the benefit of any particular tenant or
teriants, but no such waiver by Landlord shall be construed as
a waiver of such Rules and Regulations in favor of any other
tenant or tenants, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against any or all of
the tenants of the Shopping Center.
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20. These Rules and Regulations are in addition to, and shall not
be construed to in any way modify or amend, in whole or in
part, the terms, covenants, agreements and conditions of any
lease of premises in the Shopping Center.
21. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients,
customers, invitees and guests.
22. Tenant shall use, at Tenant's cost, such pest extermination
contractor as Landlord may direct and at such intervals as
Landlord may require.
23. Trailers or trucks shall not be permitted to remain parked
overnight in any area of the Shopping Center, whether loaded,
unloaded or partially loaded, No parking shall be permitted of
any trailer, truck or other vehicle in any area of the
Shopping Center at any time for purposes of advertising or
promotion without Landlord's written permission.
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Tenant agrees to comply with all additional and supplemental rules
and regulations upon notice of same from the Landlord.
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EXHIBIT IIFII
TENANT SIGN CRITERIA
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GENERAL:
This exhibit is meant to outline the tenant sign criteria for the
Retail Shops at Ha'mpden Centre Shopping Center, Mechanicsburg,
Pennsylvania. It is drafted as a guide to provide a consistent
graphic techniql.1e and may be amended or altered only with the
written consent of Landlord. Tenants will be required to submit
detailed and dimensioned drawings indicating graphic content,
colors, script, construction and fastening details and electrical
requirements to Landlord for review and approval prior to
fabrication and installation of any signs.
A. The advertising content of all signs shall be limited to
letters designating the store name, or the type of store,
Tenants will not be permitted to indicate specific merchandise
sold (i.e. brand ,names, etc.), specific services rendered
(i. e., IIfree gift wrapping" etc.), or indicate any advertising
slogans (i.e., liThe We Care People II , etc.).
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B. Crests and corporate shield designs may be permitted, but,
must be submitted to the Landlord for approval for
compatibility of design intent with the sign criteria,
C. The location, character, design, color and layout of all signs
shall be subj ect' to the approval of the landlord. Proper
consideration will be given to signs used by occupants for the
same or similar retail operations elsewhere.
D.
No sign shall be placed in final position without written
approval of the Landlord.
All signs are to ~e fabricated and installed by a licensed
sign installer and shall be in compliance with all local,
state and national codes governing sign installation and shall
bear a U.L. label.
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Tenant may install one identity sign on its service door with
maximum 2" high letters. Identity sign shall list place of
business as indicated on the tenant sign located on the sign
band and shall be "Helvetica Mediumll all capital letters.
G,
If any or all of the sign standard limitations as described
herein are found to be invalid under local sign and/or zoning
ordinances, regulations or law, to the extent that such
limitations and restrictions, or any other ordinances,
regUlations or law, is invalid as described, then the Landlord
may modify said limitations or restrictions to comply with
such local ordinance, regUlation or law. In no event shall the
invalidity of anyone of the limitations or restrictions be
deemed to invalidate the sign standard scheme as outlined.
SIGN REOUIREMENTS,
A. All signage shall not exceed 60% of storefront length (see
attached Elevation Drawing - Appendix A) .
B. Maximum sign height is 36".
C. No sign shall exceed maximum brightness of 100 foot lamberts,
No fluorescent tubing,
electrical transformers,
shall be permitted.
E. No flashing, moving, flickering, or blinking illumination
shall be permitted.
D.
incandescent lamps, ballast boxes,
crossovers, conduit or sign cabinets
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No animation, moving lights, or floodlight illumination
shall be permitted.
G.
The name and/or stamp of the sign contractor or sign company,
or both, shall not be exposed to view.
Signs, symbols, and/or trademarks must have a preliminary
approval by Landlord before shop drawings are executed.
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One sign, or other graphic treatment, is allowed per
storefront elevation. Stores with two storefront elevations
may have a second sign with the written approval of the
Landlord. Such second signs should maintain the same sign
message, graphic technique and design intent as the first
sign.
Signing is limited to trading name or logo only~
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K. All signing must occur on the sign band unless otherwise
approved.
.L. Color of raceway must match sign band color.
PROHIBITED SIGNS,
A. Paper signs, cardboard and hanging signs and/or stickers
utilized as signs.
B. Signs of a temporary character or purpose, irrespective of the
composition of the sign or material used therefor.
c. Moving signs.
D. Pictures or paintings.
E. Box type signs or sig~s with formed plastic letters.
F'. Advertising devices, slogans, merchandise or several listings.
G. Moving or rotating objects.
H. Back illuminated signs, "halo" effect letters.
I. Moving or flashing lights.
J. Painted on or luminous letters.
K. Cloth, wood, paper or cardboard.
L. Free standing signs or sandwich boards.
M. Noise making devices.
N. Boxes, cabinets, frames, transparent or translucent panels.
o.
Rooftop signs or banners, except for those beneath canopy, as
approved by the Landlord.
P.
Names of designer, manufacturer or installer.
Q,
Any other signs, graphics or components which the Landlord
determines to distract from the overall center theme.
R,
Individual dimensional wood, metal or plastic letters,
s.
Formed plastic or injected molded plastic signs.
Projecting signs and banners.
Exposed neon tubing.
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ILLUMINATED SIGNS:
A. All sign band identification signs to be internally channelled
letters with opaque metal sides and translucent acrylic face.
Letters shall be no more than 6" in depth and not less than 6"
high, with concealed ballasts. Letters must be installed on a
raceway. The color of the raceway must match the sign
band/facade.
B. Exposed neon tubes forming letters or logos shall be used only
in decorative fashion and shall be allowed at the discretion
of the Landlord on an individual basis.
SIGN SPECIFICATIONS:
These specifications are meant to serve as performance standards
for tenant signage at the Shopping Center.
Wall mounted. internallv illuminated siqn: Custom fabricated
aluminum plast.ic face, interior neon illuminat.ion, and individual
letters.
Deoth of letters: Overall sign depth is 611.
Pla~tic face~ As selected from stock colors connected to letters by
continuous aluminum retainer. Retainer ring size to be 3/8" x 1/2".
Letter stroke: Minimum 311.
TV90araohv:
attached sheet
All standard letter styles are permitted
(see "Letter Stylesll - Appendix IIBlI).
per
Color: Permitted colors for illuminated signs are as follows:
1. Lettering to be standard colors as approved by Landlord.
2. Aluminum frames to match lettering color as approved by
Landlord.
Illumination: By two (2) neon tubes with standard ratings of 118
volts.
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EXHIBIT "G"
LEASE GUARANI''l
In considera:ion of the making o~ the Lease Agreement by and
etween F~PDEN CENTER, INC., as Land~ord, and D & 0 DEVELOPMENT
CORPORATION, as Tenant. p=epared Ju:y 6, 1~97, for the premises
commonly described as B~2 Ham9den Centre (hereinafter referred to
as the "Lease") and for the purpose of inducing Landlord to enter
into and make the Lease, the undersigned hereby unconditionally
guarantees the full and p~O~pt pajment of rent and all other sums
required to be paid by Tenant under the Lease ("Guaranteed
P~yments" I and the fu~l and faitr.:t..:: performance of all terms,
conditions. coVe~a~:s. cb::gatio~s and a9ree~ents contained in the
Lease cn the Tenant's part to be performed ("Guaranteed
Obligations"} and ti~e under-signed further promises to pay all of
Landlord' 5 costs and expenses (l.ncluding reasonable attorney' 5
fees) incurred in e~deavoring to collect the Guaranteed Payments or
to enforce the Guaranteed Obliga:~ons or incurred in enforci~g this
guaranty as well as all damages which Landlord may suffer in
consequence of ar.y default or breach under the Lease or this
guaranty.
1. Lar:dlord may a~ a;1Y time and from time to time, without
notice ~o the u~ders:gned, take a~y or all of the following actions
without affec~i~g o~ impair~ng the liability and obligations of the
undersigned on this gua~.ar:ty:
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a. grar.: an ex~en5ion or extensions of time o~
oav~",e::lt of any Guaranteed PaYment or ti.me :or
pe=formance of ar.y Guaranteed Obligation;
b. g::-ar.t an :':1dulgence or indulgences in any
Guaranteed ?a)~er.: or i~ the performance of any
Guaranteed Obligatio~;
c. modify or amend the Lease or any term Chereof. or
any obligation 0: ~ehant arising thereunder;
d.
consent to any assignment or assignments,
sublease or subleases and successive assignments
or 5ublessees or a change or differe~t use of the
leased premises;
e.
consent to an extension or extensions of the term
of the Lease;
f. accept o~her guarantors; and/or
g. release any perso~ primarily or secondarily
liable.
The liability of the undersigned under this guaranty
shall in no way be affected or impaired by any failure or
delay in enforcing any G~aranteed Payment or Guaranteed
Obligation or this guaranty or any security therefor or
in exercising ar.y right or power in respect thereto, or
by any compromise! waiver, settlement, change,
subordinat.ion, modificatio:1 or disposition of any
Guaranteed Payme~: or Guaranteed Obligation or of any
security therefor. Th:s is a guaranty of payment and
oerformance and not of collection. The liability ot the
undersigned under this guaranty shall be direct and
immediate and nct conditional or contingent upon the
pursuit of any remedies against Tenant or any other party
or security.
2. The undersigned ~aives alL diligence in .collection or in
protection of any security, preser.tmen~, protest, demand, notice of
dishonor or default, notice of acceptance of this guaranty, notice
of any extens~ons granted or other ac~ion taken in reliance hereon
and all demands and ::otices of ar:.y kind in connection with this
guaranty or any Guaranteed Parmen: 0= Guaranteed Obligation.
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each ;~cv:.~~~~ L~~d~~~~ ~1~~r~~~J~r~dc~~6ci;;:e~'llt~;e~~dl a~gp~{~~~~: i~~~ ~r -} 1 cJ 1-
However, :..f ar:y prc\Oisicl1 of this guaranty is four.d by a cou~c to A: ~ + 1.1\
be in'Jalic. fo:: ar:y t.eaSO:1. t.he partl€':S :":1cend that ~he ::"erncunde:- of (1]', Q
this guarancy shall contll'~ue lr. full force ar.d effect and the ~ ~ V
invalid pro\.iaiona shall oe construed aa if t)-.ey were ~~ Containe<:,", -I. +" ')
herein, p, ~ 1-- rfJ n C7
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IN WITNESS WHEREOF, intending to be le9~.~ bou~d hereby, the ~ ,~~ \
undersigned has executed this guaranty this day of JUly. 1997. (4' H 1: ~\"" r
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3. The undersigned here~y ackr.o.....ledges full and complete
not:.ice and knowledge o~ all of t.r.e terms. cO:1di:.ions. covenar.t.s,
obligatic;1s am! agre~rr:eil.t.~ of tl~E! Lease.
<1. The payrr.er:.t by :he und~:-5igr.~c of ar:.y amount pursuant to
this guaranty shall no: in any ....ay el1title che undersiS'ned to any
rig~t, ti:.le or ir.te::est ('..:he::he:- by sL:brogat.ior:. or othertolise) 0:
the ~ena~t under the Lease or co a~y secu::icy bei~g held fer any
Guarant.eed Pa)'";r,ent 0:: Gua:-a:lceed 0bl igat.ior..
S. :E 7enaI1t fails ::0 make such pa~en:'s as prov;.ded abcve,
or :.~ :'e:,ar.t :.s o~he.r'",':se ir:. d~:a~::: 'iJnde~ the Lease on said
ter;r.inat:,oll dace, this Sua::'a:".~y sllall :~.C~ cel..-:TI.:.r.ate and shall be
co.'1tinuir.g. absolute njiO u;1co::c:t:o;:al and remai.:1 in fill: :orce ar.d
effect cntil all Guaran:eed Pa~~en:s are :;\ade. al: Gua=a~::eed
Obligations a=e per:ormed. and all obliga~ion5 of the undersicnec
under this 9uara~ty are fulfil:ed. -
o. Th.:.s suaran::.y 5:12.11 also bi:1d tl:@ successors an(j assig:,.s
of the undersionec! a:1d i:lure to :he bene:i: 0: :..e5801:". its
successors a:ld ii$sig="s. Tl::.s gcarant.y shall be construed accordi.ng
to the la.....o of th~ Ccmm::n~'.,'e.;:lc.t; of Pe:msylvania, in. which state it
sr.ali be p~rfor:ued by the \~nders:.gned.
7. :E this g....:.ara:...:.y :5 2xe::ut.ed =y more ::.har: c;:e e:n:ity, all
sir:gula:- nouns and ve~b5 herein :-elati:'lg to the undersigned shall
include the plural ntl:i~te= i'l.:1d the ob:igacion of :he several
guaran~ors shall be jo:~t and seve=al.
9, Notwithstanding the foregoi.og, this Guaranty shall be
limited to the amount of O~e year's rent, co~~on area costs. taxes
and ir.surance provided that the undersigned has not defaulted under
any term or condi cion hereunde.:. In t.he event of default, this
Gua=anty shall not be limited.
~80J J3JJewt(-
STATE OF
COUNTY OF
On this. the l') ~ay 0[ July. 1997. be:o"e me the
undersigned of~iC'ef., pe:,'sona1.:y a?pea:-ed DAVID AL~EN SNIVELY, JR.,
known to me, (or sat~sfactorily p~oven) to be the person whose name
is subscribed to the i'J.:.c:-.in i:1st~urnen':.. and ack:1owledge that he
executed the same Eer the purpose cherein co~ta:..r.ed.
IN WITNESS WHE?80F, r hereun=c set
m(JJ:::tJljt
Notary ?ublic
~ly com",ission expires, lltur;. 1a
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EXHIBIT B
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HAMPDEN CENTER, INC.
444 Park Avenue South
Suite 302
New York, NY 10016
Statement
Account:
HAMPDE" 802. SIGN10
Date:
02/01/00
SIGNS NOW (0 & 0 DEVELOPMENT)
4910 Carlisle Pike, Suite 102
Mechanicsburg, PA 17055
Payment:
)at.. Description Charges Payments Balance
Balance Forward 0.00 I
39/01/98 August Rent (Late Charge) 50,00 5000
10/01/98 September Rent (Late Charge) 50,00 100.00 I
11/01198 Mnual Promotion Fee 720.00 820,00 I
12101/98 Nov, Late payment 50,00 870.00
01/01/99 December Rent (Late Charge) 50.00 920.00 Ii
01/01199 December Rent (late charges) 50.00 970,00 jj
fi
11/01/99 Rent 1,666,67 2,636.67 I'
,I
11101199 Annual Promotion Fee 720.00 3,356.67 II
i,
11/01199 CAM1 Estimate (11199) 233.33 3,590.00 Ii
11/01/99 Insurance Estimate (11/99) 34.44 3,624.44 )i
Ii
11/01/99 R.E, Tax Estimate (11199) 132,23 3.756.67 II
12/01/99 Rent 1.666.67 5,423,34
12101/99 CAM1 Estimate (12/99) 233.33 5,656.67 I,
::~
12/01/99 Insurance Estimate (12/99) 34.44 5.691,11 i'
12/01199 R.E. Tax Estimate (12/99) 132.23 5,823.34 "
12/01/99 November Rent (late charge) 50.00 5,873.34 ii
fi
01/01/00 Rent 1.666.67 7,540,01 U
01/01/00 CAM1 Estimate (01/00) 233.33 7,773.34 ,
"
"
01/01/00 Insurance Estimate (01/00) 34.44 7,807.78 Ii
01/01100 R.E. Tax Estimate (O1100) 132.23 7,940.01 !
01/01100 December Rent (late charge) 50,00 7.990,01 i;
02101/00 Rent 1.666.67 9,656,68 Ii
02/01/00 CAM1 Estimate (02/00) 233.33 9,890.01 i
II
02101/00 11'Isurance Estimate (02/00) 34.44 9,924.45. fl
"
02/01100 R.E. Tax Estimate (02/00) 132.23 10.056.68 I)
02/01/00 january Rent (late charges) 50.00 10.106.68
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Current 30 Days 60 Days 90 cays Amount Due
2.116,67 2.116,67 2,116.67 3.756.67 10.106.68
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VERIFICATION
I, David F. Lavipour, Vice President for Hampden Center,
Inc., being authorized to do so, verify that the statements in
the foregoing document are true and correct to the best of my
knowledge, information and belief.
I understand that any false statements herein are made
subject to the penalties of 18 Pa.C.S.A. Section 4904, relating
to unsworn falsification to authorities.
HAMPDEN CENTER,
Date: Z/3/OO
By:
Vic
esident
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HAMPDEN CENTER, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO.
v.
CIVIL ACTION - LAW
D & D DEVELOPMENT CORPORATION
t/a SIGNS NOW,
Defendant
CONFESSION OF JUDGMENT FOR MONEY
AND POSSESSION OF REAL PROPERTY
CERTIFICATE OF RESIDENCE
I, Mark W. Allshouse, Esquire, hereby certify that the business
address of the Plaintiff is:
Hampden Center, Inc.
c/o Lavipour & Company, LLC
444 Park Avenue South
SuitEi 302
New York, NY 10016
I, Mark W. Allshouse, Esquire, hereby certify that the last known
address of the Defendant is:
D & D DevEilopment Corporation t/a Signs Now
c/o David Allen Snively, President
4910 Carlis1e pike Suite 102
Mechanicsburg, PA 17055
Date: 2/3/00
V\(\i
Mark W. Allshouse, squ~re
Atto ney ID #78014
219 gine Street
Harri~burg, PA 17101
(717) 236-5000
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IN THE COURT OF COMMON PLEAS OF CUMBERLANO COUNTY, PENNSYLVANIA
CIVIL DNl510N
PRAECIPE FOR WRIT OF EXECUTION
Caption:
vs.
( X) Confessed Judgment
( ) Other
File No, 2000-679 Civil Term
Amount Due 1 3 , 323 . 36
Interest
Atty's Comm
Costs
Hampden Center, Inc.,
plaintiff
D&D Development Corporation
t/a Signs Now;
Defendant
TO THE PROTHONOTARY OFTHE SAID COURT:
The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract, or
account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed
pursuant to Act 7 of 1966 as amended; and for real property pursuant to Ace 6 of 1974 as amended.
Issue writ of execution in the above matter to the Sheriff of Cumberland County,
for debt, interest and costs, upon the following oeseribed proper~1 of the detendant(s)
AIl property located in space #B2, Hampden Centre Shopping
Center, 4830 Carlisle Plke, Mechanicsburg, PA
. .
PRAECIPE FOR' ATrACHMENT EXECUTION
Issue writ of attachment to the Sheriff of ' County, for debt, interest and
costs, as above, directing attaehmeritagai8st the above-named garnishee(s) for the following property (if real
estate, supply six copies of the description; supply four copies of lengthy personalty list)
and all other property of the defendant(s) in the possession, custody or control of the said gamishee(s).
o (Indicate) Index this writ against the garnishee(s) as a lis pendens against real estate of the
defendant(s) described in the attached exhibit.
Date July 14, 2000
Signature:
Print Name:
Address:
~LIAJ.~
M rk W. A11shouse.Esq.
219 Pine street
Attorney for:
Telephone:
Supreme Court ID No.:
Harrisburg, PA
Hampden Center, Inc.
(717) 236-50QO
# 78014
(over)
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SHERIFF'S RETURN - GARNISHEE
CASE NO: 2000-00679 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
HAMPDEN CENTER INC
VS
D & D DEVELOPMENT CORP ET AL
And now MICHAEL BARRICK
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according
to law, at 1355:00 Hours, on the 31st day of July
, 2000, attached
as herein commanded all goods, chattels, rights, debts, credits, and
moneys of the within named DEFENDANT
D & D DEVELOPMENT CORPORATION T/A SIGNS NOW
, in the
hands, possession, or control of the within named Garnishee
HAMPDEN CENTRE SHOPPING CENTER
4830 CARLISLE PIKE
MECHANICSBURG, PA 17055
Cumberland County, Pennsylvania, by handing to
MICHAEL NAWA, MAINTENANCE SUPERVISOR
personally THREE tTue and attested copies of the within
WRIT OF EXECUTION
and made the contents thereof known to His .
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So answers:
.00
.00
,00
.00
.00
.00
r:~-~<:~
R. Thomas Kline
Sheriff of Cumberland County
oo/oo,~~~~
r Depu eri
me
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R. Thomas Kline, Sheriff, who being duly sworn according to
law, states this writ is returned STAYED. Sale of personal property held
as advertised on November 1, 2000 at 2:00 pm at 4830 Carlisle Pike, Space
B-2, Mechanicsburg, Cumberland County, Pennsylvania. All personal property
sold as one 10t to Attorney Mark Al1shouse on behalf of the plaintiff,
Hampden Center, Inc., for the sum of $1.00, it being the highest bid.
Sheriff's Costs:
Docketing
Advertising
Law Library
Prothonotary
Service
Garnishee
Surcharge
Levy
Poundage
$18.00
10.00
.50
1. 00
14.88
9.00
10.00
20.00
1. 67
$85.05
Advance Costs:
Sheriff's Costs:
$150.00
85.05
$ 64.95
REfund to atty on 2/27/01
SOA~ ~
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R. Thomas Kline, Sheriff
Sworn and subscribed to before me
This
;Lgl.:: day Of~~
A.D.CJ.r. 0 flu.Rj,., A~1
Prothonotary
BY g~1ftj vvtJi{
D put Sheriff
2001.
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO. .00-679 Civil Term
CIVIL ACTION - LAW
TO THE SHERIFF OF Cumberland COUNTY:
To satisfy the debt, interest and costs due Hampden Center, Inc.
PLAINTIFF(S)
from D&D Development Corporation t/a Signs Now, 4830 Carlisle, Pike, Mechanicsburg,
PA 17055
DEFENDANT(S)
(1) You are directed to levy upon the property of the defendant(s) and to sell All property located
in space #B2, Hampden Centre Shoppinq Center, 4830 Carlisle Pike,
Mechanicsburg, PA 17055
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of
GARNISHEE(S)as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is/are enjoined from paying any
debt to or for the account of the defendant(s) and from delivering any property of the defendant(s) or otherwise disposing
thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other
than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above
stated,
%
L.L.
Due Prothy
Other Costs
$.50
$1.00
Amount Due
Interest
Atty's Comm
Atty Paid
Plaintnf Paid
$13,323.36
$41 Of)
Date:
,T1l1 Y 14, 2000
Curtis R. Lonq
Prothonotary, Civil Division
...by: L20/Y'R J 2. 7f;(77/UYt, ;-
Deputy
REQUESTING PARTY:
Name Mark W. Allshouse, Esq.
Address: 219 Pine Street
Harrisburq, PA
Attorney for:Plaintiff
Telephone: 717-236-5000
Supreme Court 10 No. 78014
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