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Home My WebLink About00-02103 ""-'-"~~. ~ .'~ ,- "-~ "' ~h '~~~~,,', .. HAMPDEN CENTER, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 2000-2103 DAUGHERTY BAGEL BAKERY, LTD t/a BIG APPLE BAGEL Defendant CIVIL ACTION - CONFESSION OF JUDGMENT NOTICE UNDER RULE 2973.3 OF JlJDGMENT AND EXECUTION THEREON Notice Of Defendant's Rights To: Daugherty Bagel Bakery, Ltd t/a Big Apple Bagel A judgment for possession of real property has been entered against you and in favor of the plaintiff without prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The court has issued and the sheriff has served a writ of possession which directs the sheriff to remove you from possession of the real property. You may have legal rights to defeat the judgment or to prevent your being removed from the property or to regain possession of the property if you have been removed, if you did not voluntarily, intelligently and knowingly give up your constitutional right to notice and hearing prior to the entry of judgment or if you have defenses or other valid objections to the judgment. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. If you have been removed from the property without notice or the opportunity for a hearing, you have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently and knowingly give up your rights to notice and hearing prior to the entry of the judgment. If you wish to exercise this right, you must immediately fill out and sign the request for hearing which accompanies the writ of possession and deliver it to the Sheriff of Cumberland County at 1 Courthouse Square, Carlisle, Pennsylvania 17013. - I , -' - "'~,"" : 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 LAW OFFICES STEPHEN C. NUDEL, PC Date :-+{:L/D'L- W'd~c. ~~iro At orney ID #417 3 Mark W. Allshouse, Esquire Attorney ID #78014 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff ~c HAMPDEN CENTER, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 2000-2103 DAUGHERTY BAGEL BAKERY, LTD t/a BIG APPLE BAGEL Defendant CIVIL ACTION - CONFESSION OF JUDGMENT PETITION TO STRIKE JUDGMENT REQUEST FOR PROMPT HEARING I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to notice and hearing prior to the entry of judgment. I petition the court to strike the judgment on this ground and request a prompt hearing on this issue. I verify that the statements made in this Request for Hearing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Notice of the hearing should be given to me at: Street Address City, State Telephone Number Dated: Defendant(s) @~~__W/lOO_m-\,~~_.t&1'Jl!:ti~ire:'~~~'/'1lf "'L..~ l,' ,_" '_'.,W,,-, ,", <- "-", "', ~.,> '-" . <-," ~=-"~' 'nnlllfil,",L "<''':4 - '. 'l.iiliI~~__ "'~"1Il~' ~ ... 0 0 ~ C N g:; ::po -< ~UJ -0 ::r::n n: :;0 0'1,-=- Z::r'~ I -;:;J!:!l ZC UJ4 w :-')'1" -.....(:- ~(:-), !20 -u .'.1;:,=fl ~o :x (,~,- -7 ) -0 -'-in )>c:: r:? ~ ;z, w 53 :< \.0 -< " .~* ~~ .. , . KJi HAMPDEN CENTER, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 2000-2103 DAUGHERTY BAGEL BAKERY, LTD t/a BIG APPLE BAGEL Defendant CIVIL ACTION - CONFESSION OF JUDGMENT PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT To the Prothonotary: Issue writ of possession upon the judgment in ejectment entered by confession in the above matter for recovery of possession of the real property located at: Space A-1 Hampden Centre Shopping Center 4900 Carlisle Pike Mechanicsburg, PA 17050 To satisfy the costs against Defendant, direct the Sheriff to levy upon any property of Defendant and sell their interest therein. CERTIFICATION I certify that: (1) This Praecipe is based upon a judgment entered by confession, and (2) Notice pursuant to Rule 2973.3 will be served with the Writ of Possession. LAW OFFICES STEPHEN C. NUDEL, PC Date: '-I(2./0L St p en C. Nudel, A orney ID #41703 M rk W. Allshouse, Attorney ID #78014 219 pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff 'iiN~~IM&i&~~~%!&lm~i~!"illiJi~~-"lli'J'JiM;ii';";i'''ii'~!i1flW'H;imi!!,,~~M ~~ ..... "I", .....~ill!IiBiirliIiIIiII ~"'",L....~~,- ,-- .k,,',,~ " ~~ P r:tJ ,(") C':I ~ c: N "s: ro :bo --, ~ ~rr; "'U :::0 "" i'n.:n cit Oi); I ,- -nm ~:z:. w ;~PS:J ;CeO ''''0 ~o " ~r.::t! :3: 5;;:/) :J>C 1;? ......., ..... c: orl1 ()'- -. ...- ~ , \ =< w C 1.0 -< (), 0 \ a ....... c --..\ ~ <-.r. \ _r, ~~,,, ',~'^ 11 - ,~ ,<. ~ ~~ -., .. " (0! L.~ - ^. --~ "" C~I 1 I I , i .. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PRAECIPE FOR WRIT OF EXECUTION HAMPDEN CENTER, INC., Plaintiff ( X ) Confessed Judgment ( ) Other File No. 2000-2103 vs, Amount Due $277,808.20 / DAUGHERTY BAGEL BAKERY, LTD. t/a BIG APPLE BAGEL, Interest $ 16,668.50 Atty. 's Comm $ 1.000.00 Defendant Costs $ 163.09.. TO THE PROTHONOTARY OF THE 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 1968 as amended; and for real property pursuant to Act 6 of 1974 as amended. Issue writ of execution ~n the above matter to the Sheriff of Cumberland County, for debt, interest and costs, upon the following described property of the defendant(s): Seize all cash in the cash register, safe or other cash box located on the Premises and proceed to levy and seize on all personal property of Defendant located at Space A1 Hampden Shopping Center. Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania, which will shall be removed from the Premises and securely stored. PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of County, for debt, interest and costs, as above. directing attachment against 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) N/A and all other property of the defendant(s) in the possession, custody the said garnishee(s) o (Indicate) Index this writ against the garnishee(s) as a uS pendens against real estate of the defendant(s) described in the attached exhibit. Date ;;l,/ PI /0;),. Signature: Print Name: Address: :{f!. J~Pl1i:~ 219 Pine Street Attorney for: Telephone: Supreme Court Harrisburq, PA 17101 Hampden Center, Inc. (717) 236-5000 ID No, : 78014 i,&IlIIl3'~~A~jlil~i!!&JilRi~,~~~~!4ii&j'iib!~ct0,W6."~~~m;i;*H;l;\l'",,,.m.li"'~'if.i4i'~~~~~iIIilIIhblilllili . - ~l!J~lMlIIIiIitouwifliiHilil ~~ p -.... R .". ..,s:> ''" ~ -,'~ .~, ^ - - ~ - ~ C' -{'" 'S:' e:J~ __ ___ __I'" ~ 0- -t:-> ~I ~ ~ , ~ ~: ",,"~ ; , r', c: <, I~c :;:;:- r- 2""" " ~~C; -C L --, -~ " ... :J:&~~ ~"~~~"""''''.''-~.'!lL ::\J CF ':..-,) :"'"1 ();) S::r ~: 9 ~' ~ '" () lJ" ~""iIIi'~"~ ., ~ ~ HAMPDEN CENTER, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 2000-2103 DAUGHERTY BAGEL BAKERY, t/a BIG APPLE BAGEL Defendant LTD NOTICE CIVIL ACTIOp - CONFESSION OF JUDGMENT 0 c UNDER RULE 2958. 3 OF JUDGMENT _, ~~ AND EXECUTION THEREON ,"1,,' "''1 ....".1 ,:,:::1 ~,-' ;<, Notice Of Defendant's Rights zt' S2<-.. r=:c-'-, j;;t-, Zf~': s;:.::c z -;J -, ,::..n '0 U' ""I'.] To: Daugherty Bagel Bakery, t/a Big Apple Bagel Space A-1 Hampden Centre Shopping 4900 Carlisle Pike Mechanicsburg, PA 17050 Center Ltd ~1 A judgment in the amount of $277,808.20 has been entered against you and in favor of the plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you, The court has issued a writ of execution which directs the sheriff to take your money or other property owned by you to pay the judgment, If your money or property has been taken, you have the right to get the money or property back if you did not voluntarily, intelligently and knowingly give up your constitutional right to notice and hearing prior to the entry of judgment or if you have defenses or other valid objections to the judgment. You have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently and knowingly give up your rights to notice and hearing prior to the entry of the judgment. If you wish to exercise this right, you must immediately fill out and sign the petition to strike the judgment which accompanies the writ of execution and deliver it to the Sheriff of Cumberland County at 1 Courthouse Square, Carlisle, Pennsylvania 17013. IT IS IMPORTANT THAT YOU ACT PROMPTLY, IT WILL BE TOO LATE TO REGAIN YOUR PROPERTY IF YOU WAIT UNTIL AFTER THE PROPERTY HAS BEEN SOLD BY THE SHERIFF OR TURNED OVER TO THE PLAINTIFF. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS, YOU SHOULD TAKE THIS PAPER TO YOUR 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. - ..........~-.,' '-~~ '"-j ~ =< b" ~-' ~' o~ "~ . -~~- I -~ .- L.'"j , I i Cumberland County Lawyer Referral Service 2 Liberty Avenue Carlisle, PA 1701} (717) 249-}166 1-800-990-9108 Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL, PC Date: :;'/JI-(/()~ St phen C. Nud 1, Esquire A torney ID #4 70} M rk W. Allshouse, Esquire Attorney ID #78014 219 pine Street Harrisburg, PA 17101 (717) 2}6-5000 Attorneys for Plaintiff "-,,,.,"~ - ~ - ~ c. . ~ . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PRAECIPE FOR WRIT OF EXECUTION Plaintiff ( X ) Confessed Judgment ( ) Other File No, 2000-2103 ,--,- HAMPDEN CENTER, INC., vs, C) ~.;- Amount Due $277,808.2&'J~\' L!.; ~~, L-- .} $ 16,668.503;;;. 2';-- Atty. 's Comm $ 1. 000, O~':: o~l..( ....=(, l65.0lf''Z -j -, 1',"-- DAUGHERTY BAGEL BAKERY, LTD. t/a BIG APPLE BAGEL, Interest ,C' ,.' -'-.I ~,_:. Costs $ r.;;1 ~:;"f-/i .........', Defendant ,--.n ,0 ~ TO THE PROTHONOTARY OF THE 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 1968 as amended; and for real property pursuant to Act 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 described property of the defendant(s): Seize all cash in the cash register, safe or other cash box located on the Premises and proceed to levy and seize on all personal property of Defendant located at Space Al Hampden Shopping Center, Carlisle Pike, Mechanicsburg, Cumberland County. pennsylvania, which will shall be removed from the Premises and securely stored. PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of County, for debt, interest and costs, as above, directing attachment against 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) N/A and all other property of the defendant(s) in the possession, custody the said garnishee(s) o (Indicate) Index this writ against the garnishee(s) as a us pendens against real estate of the defendant(s) described in the attached exhibit. Date :J./fLf/OJA Signature: Print Name: Address: ./YYMd J. O/"tI6lL M<fk W. Allsho e 219 Pine Street Attorney for: Telephone: Supreme Court Harrisburq, PA 17101 Hampden Center, Inc. (717) 236-5000 ID No.: 78014 '-',' ~ ~ ~" ., liJM>!i:1 I HAMPDEN CENTER, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 2000-2103 DAUGHERTY BAGEL BAKERY, LTD t/a BIG APPLE BAGEL Defendant CIVIL ACTION - CONFESSION OF JUDGMENT PETITION TO STRIKE JUDGMENT REQUEST FOR PROMPT HEARING I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to notice and hearing prior to the entry of judgment. I petition the court to strike the judgment on this ground and request a prompt hearing on this issue. I verify that the statements made in this Request for Hearing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Notice of the hearing should be given to me at: Street Address City, State Telephone Number Dated: Defendant :: ~~wil:~ ,l', "';OOiiHl_~<~~~;il~'clj.)..w,M;HW~~_ ,.",It"""",_, ;;,' ",,''''-'P''''''-'n'''''''' ,~ , , ' "~',~,~' ,. ,-",. ~- ""","~ ". .,~,'- lllii!I! --~ ~ ~Ul!l!l~Wjili!llIlll!i_Ii.I;- '="" ~. - '~iii!!l!!J . ".. ..~ _J::,., - . , - ~ I ~ - () <..N ",.~~';'~","",'~~"'. --~ ". ~ .- =lli.'! :'ij j; /' .}Ii## , ,. "" ',1 !;,I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION -j , " I,j PRAECIPE FOR WRIT OF EXECUTION 'I i'-I I' 1:1 :~ ~ :;1 Plaintiff ( X ) Confessed Judgment ( ) Other File No. 2000-2103 i:1 'I '" HAMPDEN CENTER, INC., i'j " vs. Amount Due $277,808.20 ':1 DAUGHTERY BAGEL BAKERY, LTD. t/a BIG APPLE BAGEL, Interest $ 16.668.50 Defendant Atty's Comm $ 1,000.00 Costs $ 165.00 TO THE PROTHONOTARY OF THE 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 1968 as amended; and for real property pursuant to Act 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 described property of the defendant(s): All Personal Prooertv of Defenpant's located at the followinq address: Soace A1 Hampden Shopbinq Center, Carlise Pike, Mechanicsburq, Cumberland Countv. pennsvlvania. PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of County, for debt, interest and costs, as above. directing attachment against 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 the said garnishee(s) o (Indicate) Index this writ against the garnishee (s) as a us pendens against real ,estate of the defendant(s) described in the attached exhibit. Attorney for: Telephone: Supreme Court ~~. O\Qoh~.tIr.. ~_,W. -Alls~l 219 Pine Street Harrisburq. PA 17101 Hamoden Center, Inc. (717) 236-5000 ID No,: 78014 Date Signature: Print Name: Address: .J_~.. . . """-> -" V'"f'h ;. ( HAMPDEN CENTER, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA I': ;'i " i" (' :'; !.l i,1 Plaintiff NO. aOtlO- QlD3 ~ v. CIVIL ACTION - LAW DAUGHERTY BAGEL BAKERY, Ltd. t/a BIG APPLE BAGEL Defendant CONFESSION OF JUDGMENT FOR MONEY AND POSSESSION OF REAL PROPERTY :! :.; 'i 1:1 i' NOTICE OF JUDGMENT BY CONFESSION To: Daugherty Bagel Bakery"Ltd., t/a Big You are hereby notified that on April following judgment was entered against you case. Apple Bagel, Defendant , ..In ~, 2000 the in the above captioned Judgment by Confession for possession of the real property located at space A1, Hampden Shopping Center, Carlisle Pike, Mechanicsburg, Pennsylvania 17055. Date: 4/<.0100 ~~i00t~ry \~ )1'"' 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 P.O. Box 186 100 South Front Street Harrisburg, Pennsylvania 17101 (800) 692-7375 I hereby certify that the following is the address of the Defendant: Daugherty Bagel Bakery, Ltd. 177 Maylyn Avenue Dallastown, PA 17313 LAW OFFICES STEPHEN C. NUDEL, PC Date: If/oloO St phen C. Nudel, A torney ID #4170 Mark W. Allshouse, Esquire Attorney ID #78014 219 pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff "- -,em "- ::i "' HAMPDEN CENTER, INC., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 62COO- diD3 C:.;.Jl v. CIVIL ACTION - LAW DAUGHERTY BAGEL BAKERY, Ltd. t/a BIG APPLE BAGEL Defendant CONFESSION OF JUDGMENT FOR MONEY AND POSSESSION OF REAL PROPERTY NOTICE OF JUDGMENT BY CONFESSION To: Daugherty Bagel Bakery, Ltd., t/a Big Apple Bagel, Defendant You are hereby notified that on April ~fn , 2000 the following judgment was entered against you in the above captioned case, Judgment by Confession in the amount $277,808.20. Date: t./.,llJ1/ 00 protho~~ K-. ~~ ,I I nil 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 P.O. Box 186 100 South Front Street Harrisburg, Pennsylvania 17101 (800) 692-7375 I hereby certify that the following is the address of the Defendant: Daugherty Bagel Bakery, Ltd. 177 Maylyn Avenue Dallastown, PA 17313 LAW OFFICES STEPHEN C. NUDEL, PC Date: tf/5/DO S ephen C. Nudel, Esqu~re A torney ID #417 3 M rk W. Allshous , Esquire , Attorney ID #78014 219 pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff - - ~ ~~"~.~= '""":, . " Ii: ii' Por este medio sea avisado que en el dia 2000, un fallo ha sido anotado en contra suy en epigrafe. de de caso mencionado en e1 !', I:' I, I i:> i:i I Ii, A: Daugherty Bagel Bakery, Ltd., Defendant Fecha: el 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 S0uth Front Street Harrisburg, Pennsylvania 17101 (800) 692-7375 Por este medio certifico que 10 siguiente es la direccion del demandado: Daugherty Bagel Bakery, Ltd. 177 Maylyn Avenue Dallastown, Pennsylvania 17313 LAW OFFICES STEPHEN C. NUDEL, PC Date: 1/5/00 Ste hen C. Nu el, At orney ID #41703 Mark W. Allshouse, Esquire Attorney ID #78014 219 pine Street Harrisburg, PA 17101 (717) 236-5000 Abogado del Demandante ) ll. ~ - ~' ~ ~,,-- G' J, '""- U'IT.;,': ) , " H ;,1 I:! ii " " , :', '-I I 1 HAMPDEN CENTER, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ,'j " 1'1 1'1 Ii i'l I ',j l',1 , , Plaintiff NO. :2..000- ~re C..u:...D v. CIVIL ACTION - LAW DAUGHERTY BAGEL BAKERY, Ltd. t/a BIG APPLE BAGEL Defendant CONFESSION OF JUDGMENT FOR MONEY AND POSSESSION OF REAL PROPERTY )1 ,--I I , :1 :'i CONFESSION OF JUDGMENT FOR MONEY Pursuant to the authority contained in the Warrant of Attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for Defendant, Daugherty Bagel Bakery, Ltd., t/a Big Apple Bagel, and confess judgment in I favor of Plaintiff and against Daugherty Bagel Bakery, Ltd. as :: ::1 fi follows: Amount Past Due Interest on Amount Past Due (@ 18%) Unpaid Balance of Instrument Attorneys Fees Less Security Deposit $ 17,255.23 $ 1,552.97 $ 258,400.00 $ 3,000.00 ($ -2,400.00) TOTAL $ 277,808.20 LAW OFFICES STEPHEN C. NUDEL, PC Date: 4/5{OO W. Allshouse, rney ID #78014 21 pine Street Harrisburg, PA 17101 (717) 236-5000 For Defendant '-.' ~~- .~ I~ - . ~ ~~--'. ~ "i " ;: Ii I; j': Ii " Ij ,: 11 , i' H i: II \; : : '1 :1 :! "1 " I; ;j > HAMPDEN CENTER, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. v. CIVIL ACTION - LAW DAUGHERTY BAGEL BAKERY, Ltd. t/a BIG APPLE BAGEL Defendant CONFESSION OF JUDGMENT FOR MONEY AND POSSESSION OF REAL PROPERTY CONFESSION OF JUDGMENT FOR POSSESSION :) !i 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, Daugherty Bagel Bakery, Ltd., t/a Big Apple Bagel, and confess judgment in favor of Plaintiff and I, against Daugherty Bagel Bakery, Ltd. as follows: Space Al Hampden Shopping Center Carlisle Pike Mechanicsburg Cumberland County Pennsylvania LAW OFFICES STEPHEN C. NUDEL, PC Date: L//7J/OD Mar W. Allshouse, At orney ID #78014 21 Pine Street Harrisburg, PA 17101 (717) 236-5000 For Defendant ...""........ ..~-"~ .~ ,~"~... ~~~"~. ~~~ -= ~1 "L .. HAMPDEN CENTER, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. v. CIVIL ACTION - LAW DAUGHERTY BAGEL BAKERY, Ltd. t/a BIG APPLE BAGEL 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. Nudel, PC, and respectfully files this Complaint for Judgment by Confession as follows. 1. Plaintiff, Hampden Center, Inc., is a Pennsylvania corporation, with a business 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 Center Shopping Center, located at Carlisle Pike, Mechanicsburg, Hampden Township, Cumberland County, Pennsylvania 17055 ("SHOPPING CENTER"). 3. Defendant, Daugherty Bagel Bakery, Ltd., is a limited partnership t/a Big Apple Bagel with a registered address of 177 Maylyn Avenue, Dallastown, York County, Pennsylvania 17313 ("BIG APPLE") . 4. On or about November 25, 1997, Daugherty Bagel Bakery, Ltd., 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 A1 located in the Shopping Center ("PREMISES"). A copy of the Lease is attached hereto and made -~- 'U"~~ 'lJ ,~ .. .J' ::L;~ . part hereof as "Exhibit A". 5. The Lease has not been assigned. 6. The initial term of the Lease was to expire March 31, 2007. 7. Big Apple 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 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 (collectively "ADDITIONAL RENT") and, in the event of a default, interest, costs of suit and attorneys fees. 13. Big Apple is in default under the terms and conditions of the Lease in that Big Apple has failed to pay Rent and Additional Rent when due and owing for the months of November 1999, through the present. 14. The amount past due and owing by Big Apple is $17,255.53. A true and correct copy of a Tenant Ledger which is ~-~--, , 'i , '''"'' ., ~ ~" ~~' , attached hereto and made a part hereof as "Exhibit B" more fully sets forth the debt of Big Apple. 15. The Lease provides, inter alia, that in the event of a default by Big Apple, Plaintiff may accelerate the Rent and Additional Rent through the end of the Lease Term. 16. The Lease provides, inter alia, that all amounts unpaid by Big Apple shall bear interest at the rate of eighteen percent (18%); but not in excess of the maximum legal rate. 17. The Lease provides, inter alia, that, in the event of a default by Big Apple, Plaintiff may confess judgment against Big Apple including reasonable attorneys fees. 18. Big Apple has paid to Plaintiff a security deposit in the amount of $2,400.00. 19. Based upon the foregoing, Daugherty Bagel Bakery, Ltd. t/a Big Apple Bagel is liable to Plaintiff as follows: Amount Past Due Interest on Amount Past Due (@ 18%) Unpaid Balance of Instrument Attorneys Fees Less Security Deposit $ 17,255.23 $ 1,552.97 $ 258,400.00 $ 3,000.00 ($ -2,400.00) TOTAL $ 277,808.20 WHEREFORE, Plaintiff demands judgment in the amount of $277,808.20 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. "h ...,- '~- - '" ; ~" ~ ~ ",- ~~ .-'. ~ ~' ~ io';,. , , COUNT II: CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY 20. The averments set forth in paragraphs 1 through 19 are incorporated herein by reference as if set forth at length. 21. Big Apple 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. 22. The Lease provides, inter alia, that in the event of a default by Big Apple, Plaintiff may confess judgment against Defendant for possession of the Premises. 23. The Lease provides, inter alia, that in the event of a default by Big Apple, Big Apple 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. Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL, PC Date: '-1/5/00 Ste hen C. Nudel, E At rney ID #41703 Ma k W. Allshouse, Attorney ID #78014 219 pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff . ~ " ~.., '"&,i..,,,-, EXHIBIT A , ! '".~~,-"~- I'. AGREEMENT OF LEASE LANDLORD: HAMPDEN CENTER, INC, TENANT, DAUGHERTY BAGEL BAKERY, LTD, .'" ~~. .a,,' _ o. =~,~'"~"-....= '~ , Section 1 Section 2 Section 3 Section 4 Section 5 Section 6 Section 7 Section 8 Section 9 Section 10 Section 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 IIAn "BII "C" "0" liE" nFn IlGlI HVer.6,29,96 _00 M AGREEMENT OF LEASE LANDLORD: HAMPDEN CENTER, INC, TENANT: DAUGHERTY BAGEL BAKERY, LTD, AGREEMENT OF LEASE INDEX Premises Term Fixed Rent Percentage Rent Gross Sales Defined Additional Rent Common Areas Construction of Premises Use. . . Utilities . . . . , Rules and Regulations . . Change of Improvements by Tenant Repairs and Maintenance . Waiver of Liability by Tenant Indemnification and Insurance Signs . Assignment and Subletting . Repair After Casualty . Condemnation Landlord's Remedies Upon Default Discharge of Liens Liability of Landlord . Rights of Landlord Subordination to Mortgage No Waiver by Landlord Vacation of Premises Memorandum of Lease Rent Demand . . . Notices . . . . . . Applicable Law and Construction Force Majeure . Landlord's Lien Quiet Enjoyment Holding Over Brokers . Captions Variation in Pronouns Lenders' Approval , Security Deposit No Income Participation Hazardous Substances Binding Effect . . . , Legal Description of Shopping Center Description of Premises Landlord's Work Tenant's Work. Rules and Regulations Signage Guaranty i ;"",','l PaGe No. 1 1 2 3 4 6 7 8 8 9 10 10 11 12 12 13 13 14 16 16 19 20 20 20 21 21 21 21 22 22 22 22 23 23 23 23 23 23 24 24 24 25 '" , ~, . ~' " _..'--", ';,~; " ~-,....~~. .~~ - ) LANDLORD, LANDLORD'S ADDRESS, TENANT, TENANT'S ADDRESS, TENANT'S TRADE NAME, PREMISES, USE, LEASE COMMENCEMENT DATE, RENT COMMENCEMENT DATE, TERMINATION DATE, TERM OF LEASE, ANNUAL FIXED RENT, MONTHLY INSTALLMENTS OF FIXED RENT, ~ ~ .- ~"" _"0 lll,,~!,"' .. - REFERENCE PAGE prepared November 6, 1997 HAMPDEN CENTRE HAMPDEN CENTER, INC, 444 Park Avenue South Suite 302 New York, NY 10016 DAUGHERTY BAGEL BAKERY, LTD, A7/;a 5: d:; ,.ti/t' H ve /7~/ , BIG APPLE BAGEL 2400 square feet (see Exhibit "BI1 for outline of premises) aka Space A-I Subj ec,t to existing Leases, Tenant may operate an eat-in and take restaurant primarily featuring bagels and which includes the retail and wholesale sale of bagels" muffins, coffee and related items. Subj ect to law I Tenant may place tables and chairs on the sidewalk immediately adj aeent to the premises. Landlord retains the right to require Tenant to remove the tables and chairs. November 20, 1997 The earlier of the date Tenant opens for business or March 1, 1998 Ten years from Rent Commencement Date but not later than February 28, 2008 10 years, beginning on the Rent Commencement Date and ending on the Termination Date (unless sooner terminated pursuant to this Lease) . Lease Year 1.....$ 28,800,00 Lease Year 2....,$ 28,800,00 Lease Year 3....,$ 31,200,00 Lease Year 4..,..$ 31,200,00 Lease Year 5....,$ 31,200,00 Lease Year 6....,$ 33,600,00 Lease Year 7..,..$ 33,600,00 Lease Year 8....,$ 36,000,00 Lease Year 9....,$ 36,000.00 Lease Year 10, , , ,$ 36,000,00 'Lease Year 1.....$ 2,400,00 Lease Year 2.....$ 2,400.00 Lease Year 3, , ' , ,$ 2,600,00 Lease Year 4....,$ 2,600,00 Lease Year 5..,..$ 2,600,00 Lease Year 6....,$ 2,800.00 Lease Year 7,....$ 2,800,00 Lease Year 8....,$ 3,000,00 ii .~" h PERCENTAGE RENT: INITIAL ANNUAL PROMOTIONAL FUND COST: ,~ ~~, '.~ ~tal!llhl Lease Year 9,.. .,' $ Lease Year 10.. ..$ 3,000.00 3,000,00 NIA $O,30/SF annually payable at the beginning of each lease year. TENANT'S PRORATA SHARE: 1.0t (Premises/228,192 SF) SECURITY DEPOSIT, REAL ESTATE BROKER DUE COMMISSION: RENEWAL OPTIONS, LANDLORD REPRESENTATIONS, LANDLORD IMPROVEMENTS, FRANCHISOR PROVISIONS, EXHIBIT D: $2,400,00 Bennett Williams, Inc. Provided that Tenant has not defaulted under the terms hereof, Tenant is granted two 5-year option(s) to renew this Lease. The Annual fixed Rent shall be mar}(et rent. At Lease Commencement Date, Landlord warrants that the HVAC system is in good worJdng order. The Premises shall be delivered in IIVanilla Box" condit.ion with drywall ready for paint, floor ready for tiling, drop ceiling and all nonload bearing walls removed. The cracked window will be repaired. Anything contained in this Lease to the contrary notwithstanding, provided that there is no default hereunder, Landlord agrees that, without its consent, but upon notice, this Lease and the right, title and interest of the Tenant thereunder, may be assigned by the Tenant to BAB Systems, Inc., an Illinois corporation, or its designee, provided that said BAB Systems, Inc. or its designee shall execute such documents evidencing its agreement to thereafter keep and perform, or cause to be kept or performed, all of the obligations of the Tenant arising under this Lease from and after the rime of such assignment. Landlord agrees that Tenant shall, upon written request of BAa Systems, Inc., disclose to said corporation, all reports, information or data in Landlord's possession with respect to sales made in, upon or from the Leased Premises. Landlord shall give written notice to BAB Systems, Inc., an Illinois corporation, (concurrently with the giving at such notice to Tenant), of any default by Tenant under the Lease to which Tenant is entitled to notice. Notwithstanding the provisions of Exhibit D, Tenant shall deliver to Landlord within forty (40) days after the execution of this Lease, its plans and iii .'-- ~~ - o~ "J': , specifications for work within the leased space. The Reference Page information is incorporated into and made a part of that certain Lease (the IlLeasell) made and entered into by and between HAMPDEN CENTER, INC., as Landlord, and DAUGHERTY BAGEL BAKERY, LTD., as Tenant. In the event of any conflict b~tween any Reference Page information and the Lease, this R~ference Page shall control. The Lease includes Exhibits IlAtl through uGll, all of which are made a part hereof. Unless otherwise provided herein, all capitalized terms contained in this Reference Page shall have the meaning ascribed to them in the Lease. LANDLORD, TENANT, DAUGHERTY BAGEL BAKERY, LTD, By, Title: Dated: Vice P ~sident Nn'Cfml;]er d,S, 1997 By, ~ (jIf7- Titre ; f'. Dated'~, ' 1997 iv ~- . " ~- , .u..-..-;"""",~~:" """""""1Ol ~u , LEASE THIS LEASE made and entered into between HAMPDEN CENTER, INC., as Landlord and DAUGHERTY BAGEL BAKERY, LTD., as Tenant evidences the following understandings and agreements. The Reference Page attached hereto, including all terms defined thereon, i~ incdrporated as part of this Lease, WITNESSETH, that for good and valuable consideration, each to the other in hand paid, the receipt whereof is hereby acknowledged, the parties agree as follows: PREMISES Section 1. (a) Landlord leases to Tenant and Tenant rents from Landlord the Premises having the frontage and depth indicated on the Reference Page (all dimensions herein are measured from center of the w~ll to center of the wall for all party walls and from the outside face of all exterior walls and store fronts), located in the building (the llBuildingll) commonly known as Hampden Centre (nShopping Center"). The Shopping Center is more particularly described by metes and bounds on Exhibit "A" attached hereto and made a part hereof by reference. ;'! (b) The Premises are outlined in red on Exhibit "Bn attached hereto and made a part hereof by reference. lfTellant' s Proportionate Sharell as used in this Lease shall mean a fraction, the numerator of which is the gross leasable area of the Premises and the d~nominator of which is the gross leasable area of the Shopping CE:!nter. Premises are cross-hatched on Exhibit "EI1 attached hereto. Landlord's calculation of Tenant's Proportionate Share is as indicated on the Refe+,ence Page. Gross leasable area of the Shopping Center means all ground floor area contained in the Shopping Center designated for tenants' exclusive occupancy. Ii i t: i (c) Landlord expressly reserves (1) the use of the exterior rear and side walls and roof of the Premises and the exclusive Use of any space between the ceiling of the Premises and the floor above or the roof of the Building, (ii) 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 hereinafter defined) TERM Section 2. (a) The Lease Term shall be as indicated on the Reference Page. The term IlCommencement Daten means the day after Landlord's work on the Premises, as specifically set forth in Section 8 hereof, will be completed to the extent reasonably required for the installation by Tenant of Tenant's fixtures, furnishings and equipment or if no 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 Landlord's work on the Premises has been or will be completed and of the Commencement Date. The parties agree to ~ndorse this Lease to identify the day, month and year that the Commencement Date actually occurs. (b) If Landlord is required to perform work pursuant to Section 8 hereof, when the actual Commencement Date is established, the 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 IILease Year II as used herein shall begin on the Commencement Date and end twelve months therefrom. ~" ~-~~~ =' "~ '='~ '~'I" . ',",,',.~~,~, . , (d) Landlord hereby grants to Tenant the right and option to extend the Term of this Lease for the option periods indicated in the Renewal Option Section of the Reference Page (each a I1Renewal 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 p'rior 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(dl and 1J...gl hereof, respectively. Tenant shall have no right to extend or renew this Lease if it is in default hereunder at the time or 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 Lalldlord's Address shown on the Reference Pag,e, or at such other place as Landlord may' designate, as a fixed minimum rent for the Pl:emises 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 first day of each month during the Term. Tenant agrees to pay to Landlord, if assessed by the jurisdiction 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 hereofj 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 referred to as the IIRental Commencement Date") 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 (30) 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 Prem~ses as herein provided; or (iii) upon demand from Landlord, as the Case may be. (d) In the event Tenant exercises its right to extend the ~erm 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 installments equal to the Monthly Installment of Fixed Rent indicated in the Renewal Option section of the Reference Page for such Ren~wal 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 2 - C'. - ~~J , ,~ '~ t'c" . 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,OO) 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 for each successive monthly period until paid. The provisions of this Section shall not in any way affect Landlord' 5 remedies pursuant to Section 20 of this Lease. PERCENTAGE RENT Section 4. (a) (d) Intentionally omitted. (e) During the Term, Tenant shall not directly or indirectly engage in any similar or competing business within three (3) miles of the Spop'ping Center. This restriction shall not apply to Tenant's stores, if any, presently open and in operation within such area. As used 'in this Section 4, the wOI'd "Tenant" shall include: (i) if Tenant is a corpo:(atiol1, 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 I shall have any interest i and (ii) if Ten:ant 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 violation of Section 4 {e} hereof, in addition to any and all other'remedies available to Landlord at law and ill 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)- (d) Intentionally omitted. (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 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 I 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 II ) 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 IICommOll Area Cost"', including, without limitation, the cost of the following: lighting, utilities, cleaning, snow and trash removal, line painting, security (if 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, 3 ~ ,~" .' the cost of service agreements on equipment), tools, general repairs, employee benefits and payroll taxes, 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 (1) which shall OL- 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 Lease; (2) which arise in connection with the use, occupancy, or possession of the Shopping Center or:, any part thereof or any land, buildings, or other improvements thereon; (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 "Tax Cost") 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 upon 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 all risk, business interruption, and/or rent loss, and/or any other insurance policy which may reasonably be carried by Landlord insuring the Premises, the Building, the Common Areas, the Shopping Center, or any improvements therein (the "Insurance Costll) (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 "Utility Cost 11). Tenant's share of the Utility Cost shall be determined all 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 (10) 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's initiai annual payment for Tenant's 4 . 1l!i@J!1,-;' ". ~'h~ ... ..........~ .~'I = ;. ~. ~'.> -. ''i:-Bc'; share of the costs (IIPromotional Fund Costs") of a promotional 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, sq.all 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, 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 ill 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 af such casts, Landlord shall notify Tenant of such exact amount. Any deficiencies in the payments theretofore (including said administrative costs) made by Tenant shall be paid 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 pext 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 "rentU 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 Section 11 hereof and Landlord's rights under Section 1{c) hereof, Landlord hereby grants to Tenant and Tenant's employees, agents, customers, and invitees the nonexclusive 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 IlCommon Areasll 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 parking areas, roadways, pedestrian sidewalks, loading docks, delivery 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 discretion 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 5 . > - . ~ ~,- 1- ;;';0' property; (ii) repairs or a1 terations 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; (iv) 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; D,l'ovided, 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 Exhibit "e" attached hereto and made a part hereof by reference. Tenant hereby approves Exhibit ItC" and all of the improvements, plans and specifications described therein. It is understood and agreed by Tenant that changes in such improvements, plans and specifications which will not materially interfere with 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 "e" shall 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. ,; 1:1 (c) Tenant shall complete the improvements to the Premises described in Exhibit Il~ attached hereto and made a part hereof by reference. Landlord and Tenant hereby approve Exhibit "D" and all of the improvements, plans and specifications described therein, provided that Tenant's work described in Exhibit liD" shall be performed in accordance with the provisions of Section 12(a) (il hereof; and provided further that any change in the improvements, plans and specifications described in Exhibit ltDI1 shall be approved by LandlQrd in writing in accordance with the provisions of Section 12 (a) (ii) hereof. " 11 I i I:: 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 Landlord'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 on or before sixty (60) days after the Commencement Date, shall operate continuously one hundred percent (100%) of the premises during the entire Term, and shall keep the Premises fully stocked with merchandise and staffed with personnel 80 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 forty (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 I s Trade Name as indicated on the Reference Page, (c) Tenant accordance wi th all regulations and shall shall use and occupy the Premises in gqve:j:'nmental laws, ordinances, rules, and keep the Premises in a clean, careful, safe, 6 ~"'~-- ~~ '-~ J , _"=_0 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 permit the use or occupancy of the Premises to be or remain a nuisance or disturbance, as det,ermined 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 ser:vice 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. (iii) Notwithstanding anything to the contrary provided in this Section 10 or in Subsection 6 (a) (iv), Tenant acknowledges 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 meter 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 tenants in the Shopping Center provided such water service; or (b) based upon readings taken from a water sub-meter for the Premises, if Landlord 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 Premises, 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, after ,five (5) days written 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 performed by Tenant. (d) The obligations of Tenant to pay for utility 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 mal<.ing of necessary repairs 7 ". ,_ ~,' ,__,_,,0 , ^- - ._1 - """"";;1,.,,-, . , 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 ~ny equipment installed by Tenant shall require additional utility facilities, installation of the same should be at Tenant's expense, but only afte! Landlord's written apprpval of same, RULES AND REGULATIONS ~ection 11. Tenant agrees that Landlord has the right, at any time Clnd from time to time, for the general welfare of the Shopping Center and its occupants, to impose reasonable rules and r.'egulations 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 :r.-egulations set forth in Exhibit IIE", ~HANGE OF IMPROVEMENTS BY TENANT ~ection 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 Tenant's 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 alterations, changes, and improvements, that payment for the same will be made by Tenant. Tenant shall not make any structural alterations, 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 Te'nant of any obj ections of Landlord. Tenant shall cure the ~ause for such Objection within thirty (30) days after receipt of such notice and shall resubmit such plans and specifications for l,andlord's review and approval, Landlord may charge Tenant a reasonable charge to cover Landlord's costs as they relate to such proposed work. Prior to construction, Tenant shall provide such financial assurances as Landlord shall require to assure payment of the costs thereof and to protect Landlord against any loss from any mechanic's, 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 t.his 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. 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 8 ~,"" o. ~,~. '", '.~ - ....'"~~ '^~; 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 Ear the cost of any repair occasioned by the act or negligence of Tenant, its agents, employees, invitees 0:[' licensees. Landlord shall lJot be required to make any other improvements or repairs of any kind upon the Premises a'nd appurtenances thereto, except as oLherwise provided in this Lease. If the Premises should become in need of repairs required to be made by Landlord hereunder, Tellant shall give immediate written notice thereof to Landlord', and Landlord shall not be responsible in any way for failure to maJ<.e any such repairs until a reasonable time shall have elapsed after tlle 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 inconvenience caused Tenant or Tenant's assigns, sulJlessees, customers, illvitees, 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 l.ease 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 J<.eep and maintain, the Premises in good order, condit,ion, and'repair, in'a clean, sanit.ary, and safe condition in accordan~e with the laws of the State in which the Premises are located, and in accordancE-.' with all diL-ectioIlS, rules, and regulations of the health officer, fire marshal, building inspector, or any other-'ln.\lper off icer of the govern:nental agencies having jurisdict,ion over l.he Premises. l'lithout limiting the foregoing, Tenant shall be .responsible for maint,enance, repair, and, with Landlord's consent, replacement as needed of all electrical, plumbing, heating, ventilating, air conditioning, and utility systems located on the Premises, all pla'te glass and windows, window fittings and sashes, and interior and exterior doors, all fixtures within the Premises, all interior walls, floors and ceilings, water heaters, termite and pest extermination, all of Tenant's improvements and trade fixtures. Tenant shall keep and maintain the Premises in accordance wi th 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 thereof, Tenant shall fail to make any maintenance, repairs or replacements in and to the Premises as required in this Lease, Landlord shall have the right, but not the obligation, to enter the Premises and to make the same for and on behalf of Tenant, and all sums so expended by Landlurd shall be deemed to be Additional Rent hereunder t.lnd 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~GN~T Section 14, Landlord mId LalldloHj' 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 ~rom, any damage or injury to person or property, regardless of cause, sustained by Tenant or any person claiming through or under Tenant, resulting from any accident or occurrence in or upon the Premises of any other part of 9 -- ..,,~,', ___ ""fa - ~, ^'" ~h" ~~-, . <-~""'~~~"";'-' ~ .~""""'"- J ',."""", 0'- ......._ the Building or the Shopping Center, unless to the gross negligence of Landlord and/or employees. This provision shall survive expiration of this Lease. the same shall be Landlord's agents the termination due and or 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 in, on, 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 during 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 death of more than one (1) person as the result of anyone (1) accident or disaster, and One Million Dollars ($1,000,000.00) on account of damage to property; or (b) One Million Dollars ($l,OOG,OOO) Bodily Injury Liability and Property Damage Liability Combined Single Limit Coverage; and (ii) all-risk hazard insurance covering Tenant'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 4pon 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 l?ates 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. (d) All casualty coverage insurance carried by Landlord or Tenant shall provide for waiver of subrogation against Landlord, Tenant and other tenants in the Shopping Center on the part of the 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 iustall an identification sign for the Premises at its cost and expense, which sign shall comply with Exhibit IIFlI. 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 "FlI 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) Neith~r this Lease nor any or all interest herein 10 , 1W!lI;;;~ "''',,.'..~ .~ -~-= ,~ '" }'f;\'1 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 option, in its sole discretion, in the event of any proposed subletting or assignment, to terminate this Lease, or in the case of a proposed subletting of less than the entire Premises, to recapture the portion of the Premises to be sublet, as of the date the subletting or assignment is to be effective. The option shall be exercised by Landlord's giving Tenant written notice thereof within thirty (30) days following Landlord's receipt of Tenant's written notice as required above. If this Lease shall be terminated 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 IJortion of tIie Premises, the Annual Fixed Rent and Additional Rent during the unexpired Term shall abate, proportionately, based on the Annual Fixed Rent and Additional Rent due as of the date immediately 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 commission 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 L.andlord to any assignment or subletting shall not include consent on a subsequent assignment or subletting 11 ''''I~ ~. __.~' ~~~H- . '~"'. ><-"'i' of the Premises by Tenant or its assignee or sublessee or the consent to the assignment or transferring of any Lease renewal option rights, 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 v~id. (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 100% 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, 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 fire or other casualty. If the Premises shall be destroyed or so injured, due to 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 covering such destruction or injury, then Tenant shall not be entitled to surrender possession of the Premises, nor, except as hereinafter provided, shall Tenant I s liability to pay rent under this Lease cease without the mutual consent of the parties hereto. In the case of any such destruction or injury, Landlord shall repair all structural portions of the preluises 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 result of the negligence or willful misconduct of Tenant or 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 Additional 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 worle 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 injury, 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 or 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, 12 ~,<""'" " "",~ ~ "" ., J.&::!JI!:K'~; i ~; ," ~'" ' 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 destrllction 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 to their former condition within the time specified in said notice, Tenant~ shall complete the work required of Tenant pursuant to paragt'aph (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 occurrence 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. , j' I I: I I I f r f, (b) In addition to all rights to cancel or terminate this Lease given to the parties in Section 1a (a) hereof, (aa) if fifty percent (50%) or more of the gross leasable area of the Shopping Center is destroyed or damaged, 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 Lease as of the date of su~h 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 perce~t (50%) or more of the total square feet of floor area of the PremiEies, 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 (30l days after the date of said damage or destruction. However, if subsection {aa} above does not apply and Tenant shall, within thirty (30l days following receipt of Landlord's notice of cancellation pursuant to (bb) a.bove, 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 Landlord to terminate the Lease shall be of no force and effect and Section 1a(a) (i) or 18 ta) (iil 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. i , I !: f, (c) Notwithstanding anything to the contrary contained in Sections 1a(a) (i), la/a) (iil, and.11LO:2L 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 secured by a mortgage on the Shopping Center or any portion thereof. (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 insurance. CONDEMNATION Section 19. (a) In the event the entire Premises shall be taJ<.en 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 tl1e 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 PI.-emises shall be taken, provided notice of such termination is given within ,thirty (3D) 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 13 ~'~~ ~" "~'~ speed to an architectural unit as nearly like its condition prior to such taking as shall be practicable, If during and/or after the work 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 Prentises 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 value to the leasehold, to the reversion and fee of the Premises, to Tenant's leasehold improvements or otherwise, shall belo11<] to Landlord. 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 Sections 19(a) and.l5L.LQl hereof, Landlord may cancel this Lease with 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 ta]<:en by condenmation or right of eminent domain, or (bl following any ta]<:ing of the Premises or the Building by condenmation or right of eminent domain, Landlord's lllortgiJ,gee elects to require Landlord to make advance payments upon or for ally 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 money; or (ii) Landlord shall have an audit made for any year in accordance with Section 5(b) above and the Gross Sales shown by 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 assignment 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 ~f law; then if 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 the 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 14 "" l'OOr.: - ~ ,~, "",. ~ ~" - - 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 u'ses to lease other properties Landlord owns or manages (or if the Premises is then managed for Landlord, then Landlord wil~ instruct such manager to use the same efforts such manager then uses to lease other space or properties which it owns or manages); Drovided, 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,. orovided, further, that Landlord shall not be required to observe any instruction given by Tenant about such reletting or accept any tenailt 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 Premis'es at the same rent, for no more than the Term and on the same other terms and conditions as .in this Lease without the expeilditure by Landlord for tenant improvements or broker's commissions. In any such case, Landlord may, but sllall not 1:)e required to, make repairs, alterations and additions ill 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, without limitation, any broker's commission incurred 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 of 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 which would be payable by Tenant hereunder subsequent to default, the annual rent for each Lease Year of the unexpired portion of the Term shall be equal to 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. (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 premiums, 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 Premises, 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, (d) WHEN THIS LEASE AND ITS TERM SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY DEFAULT HEREUNDER AND ALSO WilEN TilE 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 15 >" "~" ~",: ~""""'-'~~ ~J "' '~ '. ~ ~ "",,-,"c ACTION IN EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT AND TO THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE DEMISED PREMISES TOGETHER WITH COSTS OF SUIT AND REASONABLE ATTORNEYS FEES OF NOT LESS THAN ONE THOUSAND DOLLARS, FOR WHICH THIS LEASE SHALL BE SUFFICIENT 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 THE TERMINATION OF THIS LEASE OR OF TENANT'S RIGHT OF POSSESSION AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER AMICABLE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH, TO RECOVER POSSESSION OF THE DEMISEO PREMISES AND TO CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE DEMISED PREMISES AS HEREINBEFORE PROVIDED, NOTWl'1'IlSTl\NDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, THE RIGHT OF LANDLORD TO INITIATE AN AMICABLE ACTION OF EJECTMENT AS SFECIFIED 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 ACTION AGAINST TENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT AND TO THEREIN CONFESS JUDGMENT FOR DAMAGES FOR AMOUNTS DUE HEREUNDER TOGETHER WITH COSTS OF SUIT AND ATTORNEYS ,'EES 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 I,ANDLORU 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 IIEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER ACTION OR ACTIONS AS HEREINBEFORE SET FORTH, AND '1'0 CONFESS JUDGMENT AS HEREINBEFORE PROVIDED, NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE 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 action of ejectment or for rent and other sums, Landlord shall first cause to be filed in such action 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 actions, it shall not be necessary to file the original as a warrant of attorney, any rule of court, custom or practice to the contrary notwithstanding, (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 right to have the salUe appraised. Tenant authorizes the prothonotary 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 execution or other process, Iii) Tenant Act thereto. All rights under the Pennsylvania Landlord and of 1951 and all ,supplements and amendments liii) The right to three (3) months and fifteen (15) 16 .- ~ ,~ ""'5lID-. or thirty (30) days' notice required under certai.n 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 shall, 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 of, or in any way connected wit.h, this Lease, tbe relationship of Landlord and Tenant, 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. (11): All rights and remedies provided herein or otherwise ex~,=ing at law or in equity are cumulative, and the exercise of one or more rights or remedies by either parly shall not preclude or waive its right to the exercise of any or all of the others. DISCHARGF. OF LIENS Section 21. (a) The Tenant shall not cause, suffer, or permit the Premises, Building, or the Shopping Center to be encumbered by any liens of mechanic's, laborers, or materialmen, any security interests, or any other liens. Tenant shall, whenever and as often as any such liens are filed against the Premises, the Building, 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 Landlord, at Tenant's sole cost and expense, any action, suit, or proceeding which may be brought on or for the enforcement of any such lien and shall pay any damages and satisfy and discl1arge any judgments entered in such action, 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 otherwise, 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 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 Cente,r. RIGHTS OF LANDLORD 17 ,:",."".",~-'<'"_n~=____ I ~ . . Section 23. (a) Landlord shall have the right, but not the duty, at all reasonable times, by itself or through its duly authorlzed agents, to go upon and inspect all or any part of the Premises and, at Landlord's option, to make 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 "Additional Rent" due and payable to Landlord from Tenant with the next installment of Monthly Installment of Fixed Reot due thereafter under this Lease. Any such amounts which shall be paid by Landlord on behalf of Tenant shall bear interest from the date so paid by Landlord at the rate of 'eighteen percent (1890) peI~ 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 Se.:tion 24. (a) Tenant understands, acknowledges and agrees that this Lease is and shall be subordinate to any mortgage, ground leBse or other lien or restriction of record now existing or her'eafter 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 he:r"eafter 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 Building, 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 SectiQ!l_.2.1.l..9.l he:(eof, any mortgagee may at any time subordinate the lien of its .mor'"tgage to the operation and effect of this Lease without 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. (c) Tenant shall, within ten (10) days from request by Lar:ldlord, execute and deliver to such persons as Landlord shall specify a statement in recordable form certifying that this I~ease 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 18 =~~'. """'~" 'j?ll1 - ~._I 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 I,ease, 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 LandlO1:-d. 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 per~anently 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 agent; 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 I 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 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 o~ 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 regist:ered or certified United States maill return receipt requested, postage prepaid, addressed 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: Lavipour & Company, Inc. 444 Park Avenue South, Suite 302 New York, NY 10016 APPLICABLE LAW AND CONSTRUCTION 19 - -'''ili: .~ O~~..~_~ ~'1 - O~ 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, representat.ions, 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 lending 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. ' (b) The provisions of this Section relating co such lien and security interest shall constitute a security agreement under and 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 hereafter 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 financing statement or statements and such other documents as Landlord may now or hereafter request in prder to protect or further perfect Landlord's security interest. Notwithstanding the above, Landlord shall neither sell nor withhold from Tenant Tenant's business records. QUIET ENJOYMENT Section 33. Landlord hereby covenants and agrees that if Tenant shall perform all of the covenants and agreements herein stipulated to be performed by Tenant, Tenant shall at all times during the continuance hereof have peaceable and quiet enj oyment and possession of the Premises without 'any manner of let or hindrance from Landlord or any person or persons claiming by, through, or under Landlord, subject, always, to the terms and provisions of 20 - ~ ~" '"' ~ - . ~ ~~~ - ~~ " this Lease. HOLDING OVER Section 34. If at the expiration of the Term or any renewal thereof Tenant continues to occupy the Premises, such holding over shall not consti'tute a renewal of this Lease, but Tenant shall be a t.enant from month to month upon all of the terms, provisions, covenants, and agreements hereof, except that Landlord may, in its sole discretion, increase the amount of the Annual Fixed Rent thereafter due hereunder to an amount equal to 200% of the Annual Fixed Rent being paid immediately prior to such expirations. BROKERS Section 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. Landlord shall pay any commission or fee due such broker (6) as a result of this Lease. Tenant agrees to indemnify Landlord against, and hold it harmless from, all liabilities arising from ally claim resulting from its having dealt with any other bro]<er in connection with this Lease. CAPTIONS Section 36. All paragraph titles or captions contained in this Lease 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 Lease, regardless of the number and gender in which they are used, shall be deemed and construed to include any other number or gender, as the context or sense of this Lease or any paragrapl1 or clause herein may require, as if such terms and words had been fully and prop~rly written in the appropriate number and gender. LENDERS' APPROVAL Section 38. Notwithstanding anything contained herein to the contrary, Landlord's obligations and Tenant'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 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. 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 Landlord upon execution of this Lease. Landlord may, in its sole discretion, from time to time without prejudice to any other remedy, use the Security Deposit to the extent necessary to make good any default under this Lease or to satisfy any other covenant or obligation of Tenant hereunde~; Drovided, however, that 110 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 21 ~ ~^ ~~ "'.~.~,j< _n '"' " "" ~.<... "'" ~.~~ " -ej , Security 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 Lease, 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 limitation, the obligation to restore the premises pursuant to Section 26 hereof. If Landlord transfers its interest in the Premises during the term of this Lease, Landlord may assign the Security Deposit to the transferee and thereafter Landlord shall have no further liability to Tenant. for the ret.urn 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 intel.-est in the possession, use, occupancy or utilization of the Premises shall enter into any lease, sublease, license, concession 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, used, occupied or utilized (other than an amount based on a fixed percentage or percentages of receipts or sales), 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 allY other provision of this Lease, Tenant agrees not to generate, store, use treat or dispose of, nor to allow, suffer or permit thEl generation, storage, use, treatment or disposal of, any IIhazardous wa.ste" or uhazardous substancell (as those terms are defined in the Resource Conversation and Recovery Act, 42 U.S.C Sections 6901 et ll~g., as amended ("ReRA") or the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sections 9601 ~ ggg., as amended (I1CERCLAII), and any rules and regulations now or hereafter promulgated under either of such acts) or any pollutant 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 regulation now or hereafter in effect. Tenant shall and hereby does indenmify and hold Landlord harmless from and against any and all loss, damages, expenses, fees, claims, costs and liabilities (including, but not limited to, attorneys' fees and costs of litigation) arising out of or in any manner related to the lIreleaserl or "threatened releasell of, and for any clean-up responsibility imposed upon Landlord under any federal, state or local law, ordinance, rule or regulation now or hereafter in effect, with respect to any t1hazardous waste" or "hazardous substance" (as those terms are defined in RCM and CERCLA, and any rules and regulations now or hereafter promulgated thereunder), or any pollutant, or other contaminant on, in, from or about the Pl-emises or the Shopping Center or any portion or portions thereof, which release or threatened release arises out of or is in any manner related to Tenant's use or occupancy of the Premises. Notwithstanding anything contained herein to the contrary, Landlord shall remain responsible for, and shall indemnify and save Tenant harmless from and against any and all liability, damages, losses, claims, suits and other costs (including reasonable attorney's fees) arising out of, or connected with the presence on, in, or under the Building of Premises, of any asbestos, PCBs, or any other hazardous substance or hazardous waste existing prior to the commencement of this Lease, or resulting- from any cause other than Tenant's occupancy in, or use of, the Premises. 22 - ~~~ ..- .4'"-'; ~_..w...~ - , =.. ~, BINDING EFFECT Section 42, The provisions of this Lease shall bind and inure to the benefit of Landlord and Tenant, and their respective successors, legal representatives and permitted assigns, subject to the provisions of Section 17 hereinabove. Tenant shall be bound by any succeeding party of Landlord for all the terms, covenants and conditions hereof, provided that such succeeding party complies with its obligations as Landlord hereunder. IN WITNESS WHEREOF, intending to be l~sally bound hereby, the parties hereto have set their hands this ~ day oE ND<fmber, 1991, as to Landlord, and this D- day oE lip",...""" , 1997, as to Tenant. LANDLORD, . @p-t/lldlz.c1 Wltnes HAMPDEN CENTER, INC. By, l~ Its: VTce President TENANT: DAUGHERTY BAGEL BAKERY, LTD. MMU;,1 ~ il~y It Witness BY'~/~ It~: ~ 23 ~ ~ . ,,,,.,.;, ii :i t\ Ii f! II '''''''''''~'~ ~ w_. _^~.., ,~ .~.. STATE ~NS,'fLVANIttJ- OF m~m .:GRI( ) ~P'lill\l) SS: OF ';OR:K) COUNTY BEFORE ME, a notary public in and .for said COUIlt.y and state, personally appeared David 1". Lavipour, Vice President of Hampden Center, Inc'., who acknowledged thatl with due authority, he executed the foregoing instrument on behalf of said Hampden Center, Inc. and that the same is the free act and deed of said Hampden Center, Ine. and his free act and deed individually and as such Vice President. official IN TESTIMONY.,..t1HEREOF, I have hereunto set my hand and seal this 1t27" day of ~, 1997. Nola"" Seal =~UlI!.~L-1 LI Ii lliL-Ja fHw~- Tracy L McNamara, Notary ?ubllc 'l4J _ _ .2. Harrisburg, DauphmCounty Notary P l1.c My Commission Expires May 1, 2000 COMMONWEALTH OF PENNSYLVANIA 88: COUNTY OF r..mberla-nd On this, the 2.4+.b day of JJoveYnh,..r , 1997, before me, the undersigned officer, personally appeared Y\t'Yl'ni<; Q. nau;theiJ. :fr. , who acknowledged himsel f to be the 'FYeSlrlPhL of DAt HE Y BAGEL BAKERY, LTD., a corporation, and Ulat he as such 'Pt-p'::"ldl"rL, being authorized to do SOl executed .the foregoing instrument for the purposes therein 'contained by signing the name of the corporation by himself as .Beos;rlpnt . IN WITNESS WHEREOF, I he"re'i.mto set my hand and official seal. My crnnmission expires: NOT...... SEAl WIAN A. McHUGH. Notal')' Public Mltchol!! b "V Boro. Cum.,...nd Co., PA Nrr ConlrnI:uion bpi,. MDt 24, 1999 'NR';'~M') a. YlI~ o..,A;jez N tary Public..... 24 ~. ~[:ltj~ - ~ .~~~ " -~ ,-" - EXHIBIT nAu 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. 10101 50 R.O.W.) and the line of lands N/F 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-of-way line of S.R. 0011 (120 R.O.W.); thence along said right-af-way line North 83 degrees, 59 minutes, 24 seconds West 546.43 to an iron pin (found) i 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-af-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, 45 seconds West 221.48 feet to a point; thence by lands NIl" 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 Restaurants, Inc. North 03 degl.-ees, 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. A-l ~.. j\-," ~~.."~~ ~ ~" -.[. _J EXIIIIH'l' "Oil - Uii:SCIUP'1'ION OF PREMISES The bOUlHJi'lries ClIHl lUCilLioll of: tile Premises, utiliti.es, paved illgresfl, r;~Jl:eBs, .etc., iW shown 011 this site plan sets [orth the qelleniJ .l<lYO\ll: o[ the r;h(lPJlill~ cellteJ~ and shall not ue iJ wClITallly 1>1: n~J.ln~r;Clll'ill: ion OJ' i'l~Jl_-eClllell\". 011 the part o( IJandlonl Lhi:lt said f{!loppJ I1~J CP'lltel,. wU,J be (~XilcLJ.y <lfJ imHcaleu 011 this siLe plan. , -"'-"'-:--I"~"--":'--' , , ,_ _.'" "_,___, J fl [~~~~II1EI~lt:I~[~e0 g IfEE -'~-- 1~ 8~ ____ , _ ! I~:M IQO.~ ~ ~~... ~ ~, :; :g 'Q l 0 " t c H . " JJ l;.l ~ ~ . ] il' .~ ~ I ~ ~ ~ n I . ~ 0 I ;; " ; J: a 8 'U < )> ~ " z ~ z 'j P I n ~~ ~ r',) ,.. m L_rI 11 ' 1I~ .. x '" l ~ " G ~ l~ , ~ifl [!J - I. " I ! Ii ~.t> " ' t~~Jfl~[18fE ~ -~!: I ' i' I C!::: , Cl i ," lllll! ~ II 211 I! ~ t ~ I~ t ii II a '!I Q:.II t! 0 0 ~ r-;rn;;; ~ 't ~ 1:, ; '. ....,... i I j! li!!!!I!!!!!::!:!!llll!!I!!;,!!!!!!!I!111 ~l iiill;'lllli;111;;'illi,il,il':'ill:;'i~ ! '!'i~'iililj;'!il'!:'I'1 il'ili '1~1!.1 ' I' ,i II.; I' I'" I.. d';, I r: 'I'"'' i I r I ~ d ire ! Ii: i 11 I i I I! / i j' jl~ 1\ -, " Oyou '11111 D,NIlUOJS 8-1 i I I ; " , I ~ " ' "~ e I ' "I r, . . " ........-...j, , r Z , '" c; ~ 'U \41 III ;" " ~ '11 ;u '" '" :J: I , I t i ], -I I /'Eorlc,'S DnUGS --'1WL1iL-. ~ ~II - I 'I , ~~~i;, ! i d Ii :1 .>: ~ ~ '1 ~ c 11 ,. 0 ~ - ~ /:" '" " 1 , :: I '\ ! 'I , ; :i " l,; " ~-=~-- .~~ .-. EXHIBIT "Cn LANDLORD'S WORK PREMISES WILL BE DELIVERED IN AN liAS IS" CONDITION. C-l "- .0'1 .,;~~~- J!.' ~ ~ < ~~ " iii; EXHIBIT linn TENANT'S WORK I. WORK BY TENANT A. GENERAL REOUIREMENTS, 1. APPROVALS: The Tenant shall submit to the Landlord and obtain full approval of all plans, specifications and work including all roof openings, signs, etc. Any damage done by Tenant shall be paid for by the Tenant. Landlord must approve equipment and fixtures part of the structure. any and all which become materials, a permanent 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 contl.'actol"s. All contractors engaged by Tenant as permitted 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 sllall be coordinated with the general project work. The design of all work and installation undertaken by Tenant shall be approved by the Landlord. All worJ< undertaken shall be at the Tenant's expense and shall not damage or weaken the structural strength of the building or any part thereof, and shall be done in a first-class workmanlike manner and in accord with all applicable Federal, State, County and local municipal statutes, ordinances, regulations, laws and codes. All tenallt construction shall be non-combustible, 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 work installed by Tenant shall be coordinated with and completed so as not to interfere with Landlord's construction schedule nor any other l:enant' 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 criteria shall apply for same. a, Materials, designs and color selections shall be subj ect to the prior aPliroval of Landlord and Landlord's architect. b. No portion of the storefront may protrude beyond the front line of the leased premises 0-1 ,.e " ,u_ ~,~<_~ ,~ ~.~ , "--, .," .~~ >" , ..H "~-'~'L nor encroach in any manner into the covered sidewalk. c. No unfinished wall area will be permitted on the storefront. 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 I during Ll1e continuance of construction and fixturing work within the leased premises, Workman Compensation Employers Liability Insurancej Comprehensive General Liability Insurance (including Contractors Protective Liability); Owner's Protective Liability Insurance, insuring Tenant against any alld all liability to third parties for damage due tu bodily injury and property damage liability; and Tenant's Builder's Risk Insurance; and statutory Automobile Insurance. All of the foregoing insurance policies allaJ 1. be with an insurance company approved by l,andlonl and the insurance limits contained therein shall be acceptable to Landlord. In addition, tlle aforesaid Tenant's insurance policies shall name Landlord, 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. NO WORK SHAI.I, BEGIN UNTIL ALL, INSURANCE CERTIFICATES ARE IN POSSESSION OF I.ANDL.OIW. 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, wor]<ers, or contractors. Tenant shall maintain the premises in a clean and orderly condition during construction and merchandising. Tenant shall promptly remove all unused construction materials, equipment, shipping containers, pac](aging, 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 TenanL' 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 0-2 ijo"""~=.",,",,,"~ ~~ '"'W~: 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. 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. Sucll 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 wl1ich 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 forthwi.th 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. 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, through ceiling space, column space or other parts of l~he demised premis~s 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 following 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, staining and V1all coverings. 4. Display window window backs, display window floor, display ceilings, and display window ligllting 0-3 ~... - ~ . JJ ii!~*tlIm!'d1?i fixtures and power for the same. 5. Install ceiling tiles. Landlord will stoc]<pile tiles in Premises. 6. PLUMBING WORK: Any plumbing facilities in excess of that provided by the Landlord, such as increase in size of service, drin]<ing fountains, additional toilet facilities, janitor's sink, 110se 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. resl:aurants, beauty salon, etc. Tenant will provide fire extinguishers 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. 8. 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. 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. Emergency 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, sl1el ving I counters, appliances, furniture, furnJ sliings, 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 I mi rrors, 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 busi.ness, the demising walls so as not ,to permit sound to emanate outside the premises. 11. SIGNS: The Tenant shall connect identification signs at canopy fascia at Tenant's furnish, install and at locations provided expense. D-4 ~_'.M_~ - ~~ . . ~ Canopy fascia sign design, lighting and sign copy 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. 0-5 .~""""""""'"W't'll""~ ~ ~ ~ , " ~. ~:j EXHIBIT IIEII 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, d~corate or make any changes to the store front of the premisesj 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 fire, 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 ItGoing Out of Businessll sale nor represent or advertise that it regulcu:l y or customarily sells me.rchandise at IImanufact:urer' 811, IIdistributor' Sll, or IIwholesalell, "warehousell, or similar prices or other than at 1I0ffpricell or at "retailll prices; (ii) use, or permit to be used, the malls or sidewal]<s 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 public meetings, circus or otller entertainment (except for promotional activities in cooperation with the management of the Shopping Center or an association of merchants within the Shopping 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 Ilelephant trainstl or similar transportation devices; or (v) use or permit to be used 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 ally time, 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 increasedi 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. 5. Tenant shall not obstruct any sidewalks, passages, exits, entrances, truck ways, loading docks, package pick-up stations, pedestrian sidewall< 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 wi.thout notifying the Landlord. 6. Landlord will furnish Tenant free of charge with two keys to each door lock in the Premises. Landlord may mc::l.ke a reasonable charge for any additional keys. Tenant, uppn the te.nninaL:ioll of its tenancy, shall deliver to Landlord the keys of all doors which have been furnisheQ to Tenant, and in the event of loss of any keys so furnished, shall pay Landlord therefor. 7. If Tenant requires telegraphic, telephonic, burglar alarm or E-1 "' ""- ~ .<l1~.~ - J~ - -~ - ~ "~ .......,,- VitI" 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 tllat for which they were constructed. No foreign substance or: 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. 11. 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 floOI" of tile Premises in any manner except as approved by Landlord. Tenant shall repair any damage resulting from noncompliance with this rule. ., ,j 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 allY trash box or receptacle any material which cannot be disposed of ill 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 permitted 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 {ederal, state and city laws, codes, ordinances, rules and regUlations. 15. Tenant shall not use in any space any hand trucks except: those equipped with rub)Jer tires and side guards or such other material-handling equipment as Landlord may approve. Tenant E-2 ~~~~""'~ "~- .,"'~ .. , . . ~ '''''''''''~'';C, , ,. shall not bring any other vehicles of any kind into Tenant's store. 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. 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 that. 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 ($10,00) per day or partial day per car parked in any area other than that designated. 19. Landlord may waive anyone or more of these RuJ es and Regulations for the benefit of any particular tellant or tenants, but no such waiver by Landlord shall be construed as a waiver of such Rules and RegulaL~ions in favor of: any other t.enant or tenants, nor prevent Landlord from tliereaEter enforcing any such Rules and Regulations against any or all of the tenants of the Shopping Center. 20. These Rules and Regulations are in addition to, and sh()11 not. be construed to in ally way modify or amend, ill whul.~ 01 'Ill 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 or tlw 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. ~f the Shopping Center at any time fo~ purposes, ot. advertlsDlg or promotion without Landlord's wrltten pernnss.10ll. Tenant agrees to comply with all additional and supplemental rules and regulations upon notice of same from the Landlord. E~3 ,"'- ~' " - ~ " > ' ltiJ!>; EXHIBIT IlFll TENANT SIGN CRITERIA GENERAL: This exhibit is meant to outline the tenant sign criteria for the Retail Shops at Hampden Centre Shopping Center, Mechanicsburg, Pennsylvania. It is drafted as a guide to provide a conSlstent graphic techn~que 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, constr~ction 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 or sLure. Tenants will not be permitted to indicate specific mercllUndise sold (i. e. brand names, etc.), specif ic services rendered (i.e., "free gift wrappingll etc.), or indicate any advertising slogans (i.e., liThe We Care People", etc.). B. Crests and corporate shield designs may be permitted, must be submitted to the Landlord for approval compatibility of design intent with the sign criteria, but, for 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. E. All signs are to be fabricated and installed by a 1. i.censed sign installer and shall be in compliance with all local, state and national codes governing sign installation and shall bear a D.L. label. F. Tenant may install one identity sign on its service door wltll 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 Medium" 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 wi LIi 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 3611. C. No sign shall exceed maximum brightness of 100 foot lamberts. D. No fluorescent tubing, electrical transformers, shall be permitted. E. No flashingj movingj flickering, or blinking illumination shall be permitted. incandescent lamps, ballast boxes, crossovers, condutt or sign cabinets F-l l;;_o. ~~YO' '=~ "....~ ~ - " I , , , " . F. 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. H. Signs, symbols, and/or trademarks must have a preliminary approval by Landlord before shop drawings are executed. I. One sign, or other graphic treatmentj is allowed per storefront elevation. Stores with two storefront elevations may have a second sign with the written approval of tIle Landlord. Such second signs should maintain the same sign message, graphic technique and design intent as the first sign. J. Signing is limited to trading name or logo only. 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 signs with formed plastic letters. F. Advertising devices, slogans, merchandise or several listings, G. Moving .or rotating objects. H. BaCk iJ,luminated signs, "halou 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. Bm'Ces, 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 determi'nes to distract from the overall center theme. R. Individual dimensional wood, metal or plastic letters. S. Fotmed plastic or injected molded plastic signs. Projecting signs and banners. T. u. Exposed neon tubing. F-2 """""''''''.j.,.'~'~ ~ , - .,-- inIJ~ , , 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. internally illuminated siqn: Custom fabricated aluminum plastic face, interior ueon illumination, and individual letters. Depth of letters: Overall sign depth is 6". Plastic face: As selected from stock colors connected to letters by continuous aluminum retainer. Retainer ring size to be 3/811 x 1/211. Letter stroke: Minimum 311. TVDoaraphv: attached sheet All standard letter styles are permitted (see "Letter Styles" - Appendix liB"). 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 appruved by Landlord. Illumination: By two (2) neon tubes with standard ratings of 118 volts. F-3 , . , , > . . EXHIBIT "GT1 LEASE GUARANTY In consideration of the making of the lease agreement by and between HAMPDEN CENTER, INC., as Landlord, and DAUGHERTY BAGEL BAKERY, LTD., as Tenant, prepared November 1997. for the premises commonly described as A-I Hampden Centre (hereinafter referred to as the lILeasell) and for the purpose of inducing Landlord to enter into and make the Lease, the undersigned hereby unconditionally guarantees the full and prompt payment of reIlt and all other sums required to be paid by Tenant under the I"ease (tlGuaranteed Payments") and the full and faitlifur~p-erformance of all terms, O;:::9ndi1;:.ions, covenants, obligat"ions and aat:eements contained in the Lease on the Tenant's - part to be performed (llGuaranteed Obligations") and the undersigned furtrler promis-es to pay all of Landlord's costs and expenses (including reasonable attorney's fees) incurred in endeavor.i ng to. .collect tll~ CU{lr'allL~cd Payments or to enforce the Guaranteed Obligations or incurred in enforcing this guaranty as well as al~ damages which Landlord may suffer in consequence of any default or breach under the Lease or this guaranty. 2. Landlord may at any time and from time to time, without notice to the undersigned, take any or all of the following actions without affecting or impairing the liability and obligations of the undersigned on this guaranty: a. grant an extension or extensions of time of payment of any Guaranteed payment or time for performance of any Guaranteed Obligation; b. grant an indulgence or indulgences in any Guaranteed payment or in the performance of any Guaranteed Obligation; c. modify or amend the Lease or any term thereof, or any obligation of Tenant arising thereunder; d. consent to any assignment or assignments, sublease or subleases and successive assignments or sublessees or a change or different use of the leased premises; e. consent to an extension or extensions of the term of the LeaSej f. accept other guarantors; and/or g, release any person primarily or secondarily liabl~. The liability of the undersigned under this guaranty shall in no way be affected or impaired by any failure or delay in enforcing any Guaranteed Payment or Guaranteed Obligation or this guaranty or any security t:hel.'efol- 01:" in exercising any right or power in respect thereto, or by any compromise, waiver, settlement, Cllallge, subordination, modification or disposition of any Guaranteed Payment or Guaranteed Obligat: ion or of: allY security thel"efor. TllJs is a guaranty of payment and performance and not of collection. The lialJjliL:y of Ll1e undersigned under this guaranty shall be din~cL and immediate and not conditional or contingent upon the pursuit of any remedies against Tenant or any other party or security. 2. The undersigned waives al~ diligence in collection OJ;" in protection of any security, presentment, protest, demand, notice of dishonor or default, notice of acceptance of this gua:r.anty, notice of any extensions granted or other action taken in reliance hereon G-l !,b~,"",~~~. ~^ -~ ~ ~","" '~"i!I'~':;<i , , and all demands and notices of any kind in connection with this guaranty or any Guaranteed Payment or Guaranteed Obligation. 3. The undersigned hereby acknowledges full and complete notice and knowledge of all of the terms, conditions, covenants, obligations and agreements of the Lease. 4. The payment by the undersigned of any amount pursuant to this guaranty shall not in any way entitle the undersigned to any right, title or interest (whether by subrogation or otherwise) of the Tenant under the Lease or to any security being held for any Guaranteed Payment or Guaranteed Obligation. 5. If Tenant fails to ma]<.e such payments as provided above, or if Tenant is otherwise in default under the Lease on said termination date, this guaranty shall not terminate and shall be continuing, absolute and unconditional and remain in full force and effect until all Guaranteed Payments are made, all Guaranteed Obligations are performed, and all obligations of the undersigned under this guaranty are fulfilled. 6. This guaranty shall also bind the successors and assigns of the undersigned and inure to the benefit of Lessor, its successors and assigns. This guaranty shall be construed according to the laws of the Commonwealth of Pennsylvania, in which state it shall be performed by the undersigned. 7. If this guaranty is executed by more than one entity, all singular nouns and verbs herein relating to the undersigned shall include the plural number and the obligation of the several guarantors shall be joint and several. 8. The Landlord and the undersigned intend and believe that each provision of this guaranty comports with all applicable law. However, if any provision of this guaranty is found by a court to be invalid for any reason, the parties intend that the remainder of this guaranty shall continue in full force and effect and the invalid provisions shall be construed as if they were not contained herein. 9. After the first three (3) years of the Lease, provided that Tenant has not defaulted under the Lease, this guaranty shall then be limited to six (6) months of all payments due hereunder. However, in the event payment is demanded pursuant to this Guaranty and payment is not made as demanded, the six (6) months of payment limitation shall be null and void and this Guaranty shall be in effect without limitation. IN WITNESS WHEREOF, intending to be undersigned has execouted this guaranty 1997. le~ally_boulld hereby, the thlS il day of Oct....Lt::.L, tJOrt' ,....,,,,e (" w~;;~~~ fJ arMY g Q?//;j?04' Commonwealth of pennsylvania County of On this, the I? ~:. day of ~t)_J.!",l_" 1997, bef re lie the undersigned officer, personally appeared on1. f},:-/v t"YO ,.,.., known to me, (or satisfactorily prove11) to be the per on(s) whose name (s) is/are subscribed to the within instrument, and acknowledge that he executed the same- for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand ~d offidial sJal. . , ~- r-'--~ ') My commission expires: Notary Public Notarial Seal Michael E. latshaw. Notary Public Dover Bora, York County My Commission Expires Ocl 11 1 QQI) G-2 ".,"~~= ~'~...........~ - -il' .... EXHIBIT B ~, . - , ~-"."~ ~"""""i!J~i:l: 1 . , , ~ t.,,,,,,,,,__~. ~-"" "~~~~~ "-- ~- "~~' ," ~ -~. - ~"'~~1;.' ~ . . I.' .. Statement Account: .HAMPDE . A01 - BAGEL Date: 04/04/00 Big Apple Bagels aka Big Apple Bagel 177 Maylyn Avenue Oallastown, PA 17313 Payment: Date Description Charges Payments Balance Balance Forward 0.00 11/01/99 Rent 1,000.00 1,000.00 11/01/99 CAMl Estimate (11/99{ 233.31 1,233.31 11/01/99 Insurance Estimate (1 /99) 37.38 1,270.69 11/01/99 RE. Tax Estimate (11/99) 141.62 1,412.31 1~101/99 Rent 2,400.00 3,812..31 12/01/99 CAM1 ESlimate (12/99) 233.31 4,045.62 12101199 Insurance Estimate (12/99) 37.38 4,083.00 12/01/99 R.E. Tax Estimate (12/99) 141.62 4,224.62 01/01/00 Rent 2,400.00 6,62462 01/01/00 CAMl Estimate (01/00) 233.31 6,857.93 01/01/00 Insurance Estimate (01/00) 37.38 6,895.31 . 01/01/00 R.E. Tax Estimate (01/00) 141.62 7,036.93 02/01/00 Reni 2,400.00 9,436.93 . 02/01/00 CAM1 Estimate (02/00J; 233.31 9,670.24 02/01/00 Insurance Estimate (0 00) 37.38 9,707.62 02/01/00 RE. Tax Estimate (02/00) 141.62 9,849.24 02101/00 1999 CAM Reconciliation 661.37 10,510.61 03/01/00 Rent 2,600.00 13,110.61 03/01/00 CAMl Estimate (03/00) 233.31 13,343.92 03/01/00 Insurance Estimate (03/00) 37.38 13,381.30 Q:3/01/00 RE. Tax Estimate (03/00) 141.62 13.522.92 I 03/01/00 Annual Promotion Fee 720.00 14,242.92 04/01/00 Rent 2,600.00 16,842.92 I , 04/01/00 CAMl Estimate (04/00) 233.31 17,076.23 ! I 04/01/00 Insurance Estimate (04100) 37.38 17,113,61 l 04101/00 RE. Tax Estimate (04100) 141.62 17,255.23 I I ! I , I Current 30 Days 60 Days 90 Days Amount Due 3,012.31 3,732.31 3,473.68 7,036.93 17,255.23 -: r-:>4 ""'-='~-'~"- - ......, , ,~ ~ '- _'t.i~_ ,10 , .. .. t . . VERIFICATION I, David F. Lavipour, Vice President for Hampden Center, Inc., being authorized to do so, verify that the statements in I understand that any false statements herein are made I i: i ! I' Ii l. i " I; , t 1:, i; the foregoing document are true and correct to the best of my knowledge, information and belief. subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. HAMPDEN CENTER, INC. By: Vice President , , i" , Date: t//S/()O " I , " " :: ,,- -~~. ,~ ' ~ N" ~ , ~~ , WRIT OF EXECUTION and/or A IT ACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO~ 00-2103 CIVIL 19 CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: Hampden Center, Inc. To satisfy the debt, interest and costs due PLAINT1FF(S) from Daughtery Bagel Bakery, Ltd., t/a Big Apple Bagel, Space Al, Hampden Shopping Center, Carlisle Pike, Mechanicsburg PA 17055. DEFENDANT(S) All personal (1) You are directed to levy upon the property of the defendant(s) and to sell property of Defendant at above address. (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 notny 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 ofthe defendant(s) not levied upon an subjectto attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/herthat he/she has been added as agarnishee and is enjoined as above stated~ Interest $277 ,808.20 $16,668.50 L.L. $.50 $1.00 Amount Due Atty's Comm $1,000.00 % AttyPaid $32.50 Plaintnf Paid Due Prothy Other Costs Date: August 11, 2000 CURTIS R. LONG Deputy by: Name REQUESTING PARTY: Mark W. Allshouse, Esquire Address: 219 Pine St. Attorney for: Telephone: Supreme Court ID No~ Harrisburg PA plaintiff 17101 (717) 236-5000 78014 ii~_~~ilrml1lh~~!l>Id<j;;-i8li!ttm~~ill!~ij'j~~~~.rfuF.;,;;J;ill;,~"~4"k,,___j~_1ii -j .iIlIBIl.Jil!iMJ I:" '1iI(~'AIil:IIiIIIiIiiII--~~~~ .".IIIll ~ 1IiIiIllii--- R.Thanas Kline, Sheriff, who being duly sworn according to law, states this writ is returned ABANDONED, NO ACTION TAKEN IN 6 MONTHS. Refund to Atty on 150.00 69.54 80.46 7/5/01 Sheriff's Costs: Docketing Poundage Advertising Law Library Prothonotary Milage Surcharge Levy $ 18.00 1.36 Advance Costs: Sheriff's Costs: .50 1.00 8.68 20.00 20.00 69.54 - -.' -' Sworn and Subscribed to before me this -,.-,;(day of (), T .r- 2001 A.D. ~.,....cL 7k,tI2J,.{~ honota:ry .~~~ R. Thomas K1L~e, Sheriff Bye \n ud~~1't(),,~ g (..... ) ..'FVU E:i@ c:;:::::1 ~ GVil IJ "- I:) '" 'T" i" I ,V I Nj\'ii';ilA SNN3cl ?:Ii'\; !IH\'f:) f:T r,! -JL'l: ~I 8m! . ~ J .(E, d :i ; ?~ :~ : : . " ~ .: :~' Ci 1.1P CIt. 33:L~i ~ /ISb("U . , ~ . ~" l!!i ,____N - '. 'U__ . ....t>. . ~I/<"-",:::; , -: ::(-,,.,.(9) ~'j F ~ '.~".' ""1fil , " '-- j'- . \~)~': ""1fil w r' '9fi) , .', [: ~ ""i?il ':',:'~., Ii: = i;, ~ 'PO '.." ffl . "1: U ...." . ~ ,<J:'il 1m ;::;:p. ,~ if, rr1 'J:~ 1;:' Z ( '-'" ~;/,i\\ " ... :)' I! ,~'.- (j; 'f N ., If Ii r' .- t,'" Il ....-.:: \:;;~ 6-';0 :D- , '" ,~-"--- , .. i<.-= ~"--" . ~(~ ~ .4-- 11: - c;,~ ......,. ,;- r-..,.J ..", i ,. .r I; ;t>- (/) '"0 '"0 ;t>- ~ z ! 0.. ".. .., so; - ("l , 0.. " 0 .-;. ..... " t! ::L - ~ t:' @ ".. ~ ':< Z ::+l ':< '" ~ '" :r: '" :;:: en I:"' ~ rl' '" :r: ..., '" .., Pl f-' Pl rl' ~ --- Pl Pl f-' '1 '" '* (I) Pl 0: .g c:l =: .., '1 < to trI trI ::E f'. '" (I) 0 to :>' 0. ~ Ul f'. ~ ::> '" :-= f" (I) (I) ("l '" ".. ;t>- o" ::> . '" :;; to '1 ::> t"' 0 0 Ii " 0: (I) () f" ~ rl' ;.- 0 @ - '1 :>- . (l ~ ~ '< () ~ I", - Z 0 ! 0 f-' (I) r"l ..... (I) ~ I >t:l .., f-' ,. Ul ..., '0 to ::> 0 '" " Ul 0: f-' Pl rl' fl "' " 0 f-' >t:l '< :>' 0. en :-= (I) to (I) ("l 0 0 I " 0 (I) rl' "'l (I) '1 0 w .., b' 0: f-' ~ ("l (.> to f-' "'l , '" Ul . .... "C Pl ~ Ii .., 0 <: I w 3 (I) :>' '" =-- 0 to to '" H Z ("l , '"0 . i:'j (I) - Q (I) III ::> 0 ~ ., Ul ::> '" , '" f-' ;>;" (l ..., , t'j ,Q v.> '" (I) .>< ~ [ cr- 3' Ul . () .... trI '1 I f: " - ,Q 0\ '< ~ i ::ij <II '" "C '" '" trI 0 I I, (Il ~ ,. trI .... Z .., 0: 0 t"' Z I' <: '" ..., ~ ft ... z <;l <;l , (Il r z '" "C ~ 0- f-' Vt Vt Vt Vt 'JJ t"' .., .., ...., ... - ... >< .3 .P i OJ f-' f-' 111 ~ t"l " 0 .., '" ;.. ... 0 () 0 0 '" ... w 0 0 ;.- z 0 i ..... "'l I ;.- , r- By virtue of this writ, on the 17 th day of April 2002 I caused the within named HAMPDEN CENTER, INC. have possession of the premises described ~~~~*~x~ Daugherty Bagel Bakery LTD, T/A Big Apple Bagel, Space A-l, Hampden Shopping Center, 4900 car11s1e ~1ke, Mechanics~uL6, PA 170~5. Sheriff's Costs: uocket1ng $ /18.00 Poundage 2.25 Prothy 1.00 M11age 8.28 Possession 30.00 Surcharge 20.00 uut of Gty ~.OO Dep. York Co 26.57 115.10 Sworn and subscribed to before me this "yof 0Ch,c 0 )",Ji~ Prothonotary , to AeL BrUce CO.'! t.'!. Sheriff's Costs: 150.00 115.10 34.90 Refunded to Atty on qlDg~2 SOAn~1JI!! '~~.- (;..-. 1-~ ~~ -CJ SCtriff~ ~ By (), 1 J dJ ~, D ',F<tD - trO \. ~ ~18 :Mo,G I~ ~I.il''''''' "'..........<.._llIllWli.....~I~'t ~., ~l:::.D 111ll1llli!MiI' , H .-~. ._'~. ,,- - .... , . WRIT OF POSSESSION (Ejectment Proceedings PRep 3160 - 3165 etc.) '-0 Hampden Cente~, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2000-2103 Term No. Term vs. Costs t/a Big Apple Bagel Att'y. Pl'ff (s) Prothy. $ $ 1 00 Dauuhertv Bauel Bakerv, LTD $ 15.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of rllmh~rlt=1nrl County, Pennsylvania (I) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: Hampden Center, Inc. Plaintiff (s) being: (Premises as follows): Space A-I Hampden Centre Shopping Center 4900 Carlisle Pike Mechanicsburg, PA 17050 (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defen- dant (s) and sell his/her (or their) interest therein. Curtis R. Long, Prothonotary Prothonotary, Common Pleas Court of Cumberland County, Pennsylvania (SEAL) By: ./-f'a.- F~ W .,.X;' Date April 3, 2002 . Deputy .. I, ,.~,,~~~. ~. -..~~~"~~ ." ~l -~ ~.iJ L~ ~. < ~ ..J ~ ,,< '"""~, ::.."" . ,,' R Thomas Kline, Sheriff, who being duly sworn according to law, states that a Sheriffs Sale of personal property was held on June 13, 2002, at which time the personal property of Daugherty Bagel Bakery, LTD, T/A Big Apple Bagel, was sold to Hampden Center, Inc" for the sum of $LOO, it being the highest bid and best price quoted for the same.. Date and Time of Sale, Thursday, June 13, 2002 at II :00 A.M.E.D.S.T. at 4900 Carlisle Pike, Space A-1, Mechanicsburg, PA 17055. This writ is returned STAYED, as per instructions from attorney. I., ,I" r ',C,; ,.:' i" "~" ;::i, ) Sheriff s Costs: :'" Docketing Poundage Advertising Law Library Prothonotary Milage Cert. Mail Surcharge Levy Post Pone Sale Garnishee $ 18.00 L79 10.00 ;;', LOO 16.56 3.99 20.00 20.00 P' i, 1~ 'I' II \\ i'i " " , 9.00 $ 100.34 Pd by Defendant i:ii i, !:i; iii i" I, !:j- i: i[ ill Sworn and Subscribed to before me So Answers; rJA.?r4~~ ~t R. Thomas K1ine,t~ ii I' I: Ii I !p 1i This q ~ dayofC),p,/ 2002 A.D. Q;t' Q,~/~ pro 0 otary . ByCJCUtdl~a.~wJ \ . . . . I , I '.1'1 n " "'~-1 1::f1:J:," ~ ,:c...~::f' '-~--~" <~; =, "(b!b, 'I!:!h, (C' !J I. ,=:=.-, 1,-\ l..c;H.H3d '" \ U\ I ".. \; \ 'L..~ ._ \ ., _ ',. " .~ ~~,! j~-::!::'.~:-, i~jd\",,:; 1Q, \\d zz e ~\ ~~1 \ \~i f\'J Hill?'.; '. '.'.1.' j;),:;:HQ JJ\\!~H" :1.' ,. \.~ I- <fJ <I '7 l. .\.? ,\0 IU'-- . J' n \ '~ :'ii.iMI~~l~~Hit'llil.'<lid-~~-%"""~",,!('_cAi,",,~,di,"'~il!,l"',"''''d_~,,_~iii:llMI~,~~,*,,;ij;~iIluW~~""""~" 1iiIl"""'" -~"liIilliiiIlll!i!__- -~~-.-",,~.,~ .,,, -~'.........~~~,-~-" ~" WRIT OF EXECUTION andlor ATTACHMENT , " COMMONWEALTH OF PENNSYL VANIA) COUNTY OF CUMBERLAND) NO 00-2103 Civil CIVIL ACTION - LAW TO THE SHERIFF OF Cumberland COUNTY: To satisfy the debt, interest and costs due HAMPDEN CENTER, iNC. PLANTIFF(S) From DAUGHERTY BAGEL BAKERY, LTD t/a BIG APPLE BAGEL, SPACE Al HAMPDEN SHOPPING CENTER, CARLISLE PIKE, MECHANICSBURG PA 17055. (1) You are directed to levy upon the property ofthe defendant( s) and to sell SEIZE ALL CASH IN THE CASH REGISTER, SAFE OR OTHER CASH BOX LOCATED ON PREMISES AND PROCEED TO LEVY AND SEIZE ON ALL PERSONAL PROPERTY AT ABOVE ADDRESS WIDCH WILL SHALL BE REMOVED FROM THE PREMISES AND SECURELY STORDED. (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 gan1ishee(s) that: (a) an attachment bas 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) Ifproperty 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 bas been added as a garnishee and is enjoined as above stated. Amount Due $277,808.20 Interest $16,668.50 Atty's Comm $1,000.00 % Atty Paid $114.04 Plaintiff Paid L.L. Due Prothy $1. 00 Other Costs Date: FEBRUARY 15, 2002 CURTIS R. LONG Prothonotary, Civil Division REQUESTING PARTY: Name MARK W. ALLSHOUSE, ESQ. Address: 219 PINE STREET HARRISBURG PA 17101 Attorney for: PLAINTIFF Telephone: (717) 236 5000 Supreme Court ID No. 78014 B'1f~~~~ u :J !""""1"_""'~,~,"~__,,._m~~~'''.,_''~~ _],_ ~~>,,~~_ -, m ~"'I1I1t ~~~ ~ -~.~~ - __ I - ,- .~ ~l L~'_ ". ' &. ,r. SHERIFF'S SALE ;':, \' BY VIRTUE OF WRIT OF EXECUTION NO. 2000-2103 CIVIL TERM ISSUED OUT OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA, AND TO ME DIRECTED, I WILL EXPOSE TO PUBLIC SALE ON THURSDAY THE 13TH DAY OF JUNE 2002 AT 11:00 A.M., THE PROPERTY OF DAUGHERTY BAGEL BAKERY, LTD, T/A BIG APPLE BAGEL, AT, HAMPDEN SHOPPING CENTER, SPACE AI, CARLISLE PIKE, MECHANICSBURG, CUMBERLAND COUNTY, PENNSYLVANIA. THE FOLLOWING PROPERTY TO WIT: TABLES. (16) d~~ f CHAIRS(32) Z. Cf-l-<l.,,,<:~ jf BAR STOOLS {8~ HIGH CHAIRS (2) ('\ COFFEE GRINDERS (2) COFFEE MACHINES (2) f CD'S (16) 'f. MISC. FLAVORED SYRUP (15 BOTTLES) MISC. COFFEE ACCESSORIES DISPLAY CASES (2) )<.ASSORTED DRINKS (120) COFFEE POTS (8) MICROWAVES (2) COLD SERVING TABLE SMALL REFRIGERATORS (2) LATTE MACHINE MISC. CUPS/GLASSES STEEL PREP TABLE REFRIGERATION UNIT (TROAUTLSEN) GEMINI OVEN TRAY CARTS (12) SHELVING UNIT (4 SHELVES). CASH REGISTERS (2) THREE SINK UNIT MISC. POTS/P ANS SMALL RADIO EMPIRE BAGEL MAKER BAKERY PREP TABLE MISC. BAGEL TRAYS\ EMPIRE MIXER SHELF UNITS (3) LADDER GLOBE SLICER BERKEL MIXER TWO DRAWER FILE CABINETS (2) STAND FOUNTAIN COKE MACHINE BAGEL BASKETS (24) . I I. I . ""'"'~~_. -0....._ - " '. ,,- =...~"'-' ~ ]i <. .... I ..... yt .. ' (A) ALL CLAIMS TO PROPERTY MUST BE CERTIFIED AND FILED WITH THE SHERIFF BEFORE THE SALE, ALONG WITH THE PRESCRIBED FEE OF FIFTY-FIVE DOLLARS ($55.00) ALL CLAIMS TO THE PROCEEDS MUST BE FILED WITH THE SHERIFF BEFORE DISTRIBUTION. (B) (C) THE SHERIFF'S SCHEDULE OF DISTRIBUTION WILL BE FILED IN HIS OFFICE ON THE ISTIl DAY OF JUNE 2002 NOT LATER THAN FIVE (5) DAYS AFTER THE SALE, AND DISTRIBUTION WILL BE MADE IN ACCORDANCE WITH THE SCHEDULE UNLESS EXCEPTIONS ARE FILED WITHIN THE TEN (1 0) DAYS THEREAFTER. TOGETHER WITH ALL THE BALANCE OF THE DEFENDANT'S PERSONAL PROPERTY SEIZED AND TAKEN IN EXECUTION AS PROPERTY OF DAUGHERTY BAGEL BAKERY, LTD, T/A BIG APPLE BAGEL, AT, HAMPDEN SHOPPING CENTER, SPACE AI, CARLISLE PIKE, MECHANICSBURG, CUMBERLAND COUNTY, PENNSYLVANIA. AND TO BE SOLD BY: R. THOMAS KLINE, SHERIFF CUMBERLAND COUNTY SHERIFF'S OFFICE CARLISLE, PA 17013 POSTED....mr ~J. "'Zj(~ CUMBERLAND CO SHERIFF'S OFFICE CARLISLE, P A 17013 R. Thomas Kline Sheriff, who being duly sworn according to law, says that due a~d legal notice having been given according:ctoIlaw, he sold the property of Daugherty Bagel Ba~ery, ~TD, T/A Big Apple Bagel, to, Hampden Center, Inc., 4900 Carl~sle ~~ke,.Space A-~, Mechanicsburg, PA 17055 for the sum of $ 1.00,.~t be~ng the h~ghest bid and price quoted for the same. Date and t~me of sale, Thursday June 13, 2002 at 11:00 A.M.E.D.S.T., at 4900 Carlisle Pike, Space A-I, Mechanicsburg, Pennsylvania. Sworn and Subscribed to before me this d. 2002 A. So Answer , $::. :-~~~riff ~="..