HomeMy WebLinkAbout07-1528IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
STATE COLLEGE PREMIER
RENTALS, L.P.
Plaintiff, : Civil Action No. 7 vs.
KIMBERLY S. BANZHOFF, t/d/b/a
UNDERNEATH IT ALL,
Defendant.
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the warrant of attorney, a copy of which is
attached to the Complaint filed in this action, I appear for the Defendant and confess
judgment in favor of the Plaintiff and against Defendant as follows:
Principal amount due:
Other authorized items:
Interest from September of 2006:
Attorneys' Fees:
TOTAL AMOUNT DUE:
$ 58,248.07
$ 2,912.40
$ 16 .47 plus interest
David B. onsiglio, Esquire
Attorney for Defendant
JUDGMENT ENTERED AS ABOVE, Ouz&r.4 -2 wry:
PR THON Y
? T
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
STATE COLLEGE PREMIER
RENTALS, L.P.
Plaintiff, Civil Action No.(37 -Aur Of VL ??.
vs.
KIMBERLY S. BANZHOFF, t/d/b/a
UNDERNEATH IT ALL,
Defendant.
COMPLAINT FOR CONFESSION OF JUDGMENT
NOW COMES PLAINTIFF, STATE COLLEGE PREMIER RENTALS, L.P.,
pursuant to Rule 2950 et seq. of the Pennsylvania Rules of Civil Procedure, and confesses
judgment against Defendant, KIMBERLY S. BANZHOFF, d/b/a UNDERNEATH IT ALL,
for money in the total amount of $58,248.07, on the basis of a Lease executed between the
parties on August 1, 2005 for property located at 829 State Street, Suite/Office #N, Lemoyne,
Pennsylvania:
1. Plaintiff is a Pennsylvania limited partnership with an address of P.O. Box
409, State College, PA 16801.
2. Defendant is an adult individual whose last known address is 632 Devon Road,
Camp Hill, Pennsylvania 17011.
3. On or about August 1, 2005, the parties executed a LEASE whereby Plaintiff
leased to Defendant the premises at 829 State Street, Suite/Office #N,
T ?
Lemoyne, Pennsylvania, (the "premises") a parcel within what is known as
State Street Plaza. A true and correct copy of the LEASE is attached hereto
and made part hereof as Exhibit "A."
4. Defendant occupies the premises to operate a retail items (clothing &
accessories) establishment.
5. Section 2 of the LEASE provides that the term of the LEASE shall be
November 1, 2005 through October 31, 2010.
6. Section 4 of the LEASE establishes annual Base Rents for the respective years,
or fractions of years, for the term of the LEASE together with Additional Rent.
7. Section 5 of the LEASE prescribes the time, date and location for the payment
of Base and Additional Rent.
8. Section 6 of the LEASE prescribes late payment charges and interest rate on
delinquencies.
9. Despite her possession and use of the premises, Defendant has failed to pay
Base and Additional Rent and other charges which are her responsibility under
the LEASE commencing in November of 2005 and continuing as of the date
of the filing of this Complaint as set forth in attached Exhibit "B."
10. Defendant is in default of the LEASE because of her failure to pay rent and
charges when due as required under the specific terms of the LEASE.
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11. Pursuant to terms of the LEASE, Plaintiff has the right to declare that all Rents
and all other charges on the balance of the LEASE be currently due and
payable. Section 30( c) of the LEASE provides as follows:
Landlord may declare Base Rent and all items of
Additional Rent (the amount thereof to be based
on historical amounts and Landlord's estimates for
future amounts) for the entire balance of the then
current Term immediately due and payable,
together with all other charges, payments, costs,
and expenses payable by Tenant as though such
amounts were payable in advance on the date the
Event of Default occurred.
12. By virtue of the aforesaid defaults, the amount now due and owed under the
LEASE is $58,248.07, which includes the past due Rent Defendant has failed
to pay and all remaining Rent, Base and Additional, together with the other
charges, payments, costs, and expenses payable under the terms of the LEASE.
13. Plaintiff is also entitled, by the express terms of the LEASE, to an award of
counsel fees incurred in remedying Defendant's default. Section 31(a) of the
LEASE provides as follows:
CONFESSION OF JUDGMENT FOR RENT. TENANT
IRREVOCABLY AUTHORIZES AND EMPOWERS THE
PROTHONOTARY AND CLERK OR ANY ATTORNEY
OF ANY COURT OF RECORD TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST TENANT FOR SUCH
RENT AND OTHER SUMS AS ARE DUE AND/OR MAY
BECOME DUE UNDER THIS LEASE, WITHOUT STAY
OF EXECUTION AND WITH AN ATTORNEY'S
COLLECTION FEE OF FIVE PERCENT (5%) OF THE
AMOUNT DUE (BUT NOT LESS THAN $1,000.00),
WHICH IS REASONABLE AS AN ATTORNEY'S FEE.
-3-
TO THE EXTENT PERMITTED BY LAW, TENANT
RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IF
A VERIFIED COPY OF THIS LEASE IS FILED, IT
SHALL NOT BE NECESSARY TO FILE THE ORIGINAL
LEASE. THE AUTHORITY AND POWER TO APPEAR
FOR AND CONFESS JUDGMENT AGAINST TENANT
SHALL NOT BE EXHAUSTED BY THE INITIAL
EXERCISE THEREOF AND MAY BE CONFESSED AS
OFTEN AS ANY EVENT OF DEFAULT OCCURS. SUCH
AUTHORITY MAY BE EXERCISED DURING OR
AFTER THE EXPIRATION OF THE LEASE TERM
AND/OR DURING OR AFTER THE EXPIRATION OF
ANY EXTENDED OR RENEWAL TERM.
14. Pursuant to Section 31 of the LEASE, Plaintiff may and hereby does confess
judgment against Defendant for the foregoing amounts.
15. Attorney's fees of five (5%) percent of in the amount of $2,912.40_.
16. Judgement is not being entered by confession against a natural person in
connection with a consumer credit transaction.
WHEREFORE, Plaintiff demands that judgment be entered in its favor and against
Defendant in the amount of $61,160.47, plus interest and the costs of this action.
Respectfully submitted,
MILLER, KISTLER, CAMPBELL,
MILLER, WILLI4MS & BENSON, INC.
By:
David B. C nsiglio, Esquire
I.D.# 7277
720 South Atherton Street
State College, PA 16801
Date: March 15, 2007 (814) 234-1500
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VERIFICATION
I verify that the statements contained in the foregoing document are true and correct
to the best of my knowledge, information and belief. I understand that the statements therein
are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification
to authorities.
sue; .
Frederick Sahakian, Partner
State College Premier Rentals, L.P.
Dated: 3 1 I S 1 c-1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
STATE COLLEGE PREMIER
RENTALS, L.P.
Plaintiff, Civil Action No.
vs. :
ANTHONY FIORELLO, d/b/a
FIORELLO'S PIZZERIA, :
Defendant.
CERTIFICATE OF SERVICE
I, David B. Consiglio, Esquire, of Miller, Kistler, Campbell, Miller, Williams
& Benson, Inc., do hereby certify that on this 15 'h day of March, 2007, a true and correct
copy of the foregoing document was served on the following person by depositing the same
in the United States Mail, certified with returned receipt requested and regular, postage
prepaid, addressed as follows:
Kimberly S. Banzhoff t/d/b/a Underneath It All
632 Devon Road
Camp Hill, PA 17011
John W. Purcell, Jr.
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
MILLER, KISTLER, CAMPBELL,
MILLER, WILPAMS & BENSON, INC.
By:
David B. ggnsiglio, Esquire
LEA.
DATE: August 1, 2005
STATE COLLEGE PREMIER RENTALS, E•r••'ith an
"LANDLORD": address of
PO Box 409. state College, n5v is 1680?F
with an address of?o
Underneath It All do •
t
Store/office # N coroisdng of 1,323 square feet in the Shopping enter a te
-PREMISES": known as Hoover's Plaza ui Ls7noya4 peensYlvania. located at 8229 9 Sta in Center'")
Street. LemoY?, P?sylvania 17043 (the "Shopp g
?nof the t29 o asvfo1wc et forth herein,
NOW, THEREFORE-, for and in consideration
and intending to be legally bound, Landlord .ut T
PARKING LOT: Landlord does hereby demise and
1, LEASE DP PREMISES;
lease to Tenant, and Tenant does hereby lease and take from landlord, the Premises. Tenant, its
employees. agents and invitees are also granted the non-exclusive right, in common with . on of Landiorcl and the other tenants at the Shopping Centre and their employ?a• agents and invitees.
to use the parking lot at die Shopping ?ntl ndlord rese,veti the ri&t to modify the parking tlot
business. Notwithstanding the foregotg.
from time to title as may be deemed desirable by Landlord.
2. TERM : The term of the Lease (the "Term") shill be five (5) years, commencing
on t4ovembcr 1, 2005 (the "Commencement Date") and expiring without further act or notice on
fer to
October 31,2010 (the "Termination Dace"). seused herein, the or any "Lease a earv shallre thereof-
R period of one year comtneacing on the C n
two
Tenant shall have the option (tire 'Renevral Option") to extend the Term the day
times for an additional five (5) years each (the "Renewal Term"). commencing on e Renewal
ion immediately following the Termination Dtn Landl? d n t less Ow six (6) months prior to the
providing written notice of such exercise
Termination Date.
3. USE: The Premises shall be used by Tenant solely as a retail items (c1 Pcgm 4C.i or use accessories) establishment and for no othcr er the s t use,
to ou:ttP d or s dtfor any putposes other than
or any part thereof, nor perntu or r suff
herein limited, nor for any purpose deemed unlawful, clisreputable, hazardous or a nuismi ,
4. REM : The Tenant covenants and agrees to pay to Landlord annual base rent
("Base Rent") in the following amounts:
Ac-7111, .M's
EXHIBIT
A
a during the Lust Lease Year, $12,569, payable in monthly installments of
$1,041.00 per month:
.............. . b. __...._.__during tbc. second Lease year, $12.920, payable in monthly installments of
$1,OG8.00 per month: - -
third Lease year, $13,077. Payable in monthly installments of
a during the
$1,090.00 per month:
d. during the fourth Lease Year. $13,339, payable in monthly in of
$1,112.00 per month;
e. during the fifth Lease year. $13,606, payable in monthly installments of
$1.134.00 per month.
Basc Rent during each Lease Year of tht Tenn or any Renewal Term, if excra:'ed, shall
be equal to One Hundred Two percent (102%) of the Base Rent applicable (luring the
immediately preceding Lease Year.
In addition to the Base Rent, Tenant shall pay Landlord as "Additional Rent" all
other payments, impositions, ch'uges, costs. fees, reimbursements and all other stuns of money as specifi shall become due and payable by Tenant to Landlord under m# Lease, whether
herein to the con cally stated
to be treated as Additional Rent or not. Unless specifically provided
Additional Rent due shall be paid on the first day of each calendar month of the Term
5. RENT; WHEN DUE; WHERE PAID: All Base Rent and Additional Rent
payable by Tenant to Landlord under this Lease shall be deemed to be rent and shall be payable
and recoverable as rent in the manner herein provided, and Landlord shall have all rights set forth
herein agairtst Tenant for default in any suds payment. Base Rent shall be paid to Landlord in
advance. on the first day of each calendar month, during the entire Term, withOUt deduction Or
set-off, in legal tender of the United States of America. at the address of Landlord asset forth
above, or to such other person of entity or w such other address ac Landlord may designate in
writing. Tenant's obligation to pay all rent due under this Lease shall survive the expiration or
earlier termination of this Least:.
6. LATE PAYMENT CHARGE; INTEREST RATE ON DELINQUENCIES- if
Tenant shall fail to pay any rent within five (5) days of when the same shall be due, Tenant shall
pay to Landlord a late payment charge of $50.00 for each occurrence, as Additional Rent,
intended to partially compensate Landlord for its administrative costs. Tenant aclmowledges that
such late fee is a reasonable estimate of such costs and does not constitute a penalty. In addition,
any amounts not paid when due shall bear interest at the greater of one and one half percent
(1.5°10) per month and the maximum interest rate legally permitted, front the date such payment
was due until paid. In no event shall the interest rate hereunder exceed the interest; rate legally
permitted.
W.1 K7 W21109
7. UTILITIES: Tenant shall conuact dimly with serving utility companies for the provision of. all separately zoned and nnetered Tenant utilities. Tcnam shall pay when due,
directly to such utility companies, all charges for such services and Landlord shall have no
liability for any ?s?d atonal Rent with the inatallmcrat of rent neat d?shall be added to and
become payable
8. CONDMON OF PREMISES: Tenant accepts the Premises in "US is" condition
and agrees that Landlord has made no representations or warranties concerning the Shopping
Center or Premises, except as expressly set forth in this Lease.
9. TITLE AND QUIET ENJOYMENT' Landlord covenants and represents that
Landlord is the owner of the Premises herein leased and has the right and authority to enter into,
execute and deliver this Lease; and does further covenant that Tenant, on paying the rent and
performing the conditions and covenants herein contained, shall and may peaceably and quietly
have, hold and enjoy the Premises during the Term.
additions, or
10. ALTERATIONS; IMPROVEMENTS: No alterations,
improvements shall be made, and no climate regulating, air conditioning, cooling, ha:ating Otis
sprinkler systems, plumbing systems, television or radio tuntennas, heavy equipment, apparatus
and fixtures, shrill be installed in or anaC113d to he Premises, without the vrriuen consent of
Landlord. Unless otherwise indicated by Landlord, all such alterations, additions or
improvements, when made, installed in or attached to the Premises, shall belong to and become
the property of Landlord and shall be surrendered with the Premises and xs part thereof upon the
expiration or earlier termination of this Tease. without hindrance, molestation or injury. If
Landlord shall require Tenant to remove any such alternations, additions or improvements at the
expiration or earlier termination of the Lease, Tenant shall do so at Tenant's expense, such
obligation to survive expiration or earlier termination of the Lease.
11. SIGNS: Except for signs which are located wholly within the interior of the
Premises, no signs shall be placed, erected, maintained or painted on the Premises or any place in
the Shopping Center without the prior written consent of Landlord. All sigrtr installed by or at
the request of Tenant shall be maintained by Tenant in good condition during the Term, and
Tenant shall remove all signs at the termination of this lease and shall repair and restore any
damage caused by the installation or removal thereof. Lt the event Landlord elects to impose a
uniform sign paclage on all. or a portion of the Shopping Center, Tenant shall pay to Landlord
the cost of replacing its existing Tenant signage with sig nagc consistent with any future Landlord
imposed specifications. Should Tenant fail to perform any of its' obligarions under this
Section 11, Landlord may perform such obligations on behalf of Tenant, and the cost and
expense thereof, together with interest from the date such costs and expenses were incurred by
Landlord, shall be paid by Tenant to Landlord as Additional Rant within ten (10) days after
delivery of a statement fmm Landlord identifying the amount due.
12. MAINTENANCE AND CARE: JANTTORLA.L SFRVICFS: Tenant shall, at
Tenant's own cost and expense, take good care of the Premises and make all repairs and
replacements, including painting and decorating, accessary to maintain the Premises in good
condition and state of repair. At the expiration or earlier termination of this Lease, Tenant Shall
WititiociAft.
surruider and deliver up the Premises in good order and em,dition, reasonablled T??hall nand
- damage by the elcrwMi not resulting from neglect or fault of Te nt c%ce and stairs adjacent to
encumber nor obstruct the sidewalks, driveways, yards, entraes, the Premises, and shall keep and maintain the same in a clean condition, free from debris, tra$h,
refuse, snow and ice.
Tenant shall, at Tenant's own cost and expense, maintain, repair and, if necessarY, l interior replace all systems servicing the Premises, and shallbenicspons? to, forlthe mainte lnartcerandlir
conditioning. healing and ellc?ieal systems, plumbing all toilet facilities shall be
repair of all other interior portions of the PremisP es' All condition. Fxcept for repairs trade
kept inconstant working order and in a clean and sanitary con
necessary by Tenant, its agents, employ, guests, licensees, invitees, subtenants, assignees, or
successors (for which Teoaat shall be responsible), Landlord shall be relsp risible for structural
repairs to, and exterior maintenance of, the building containing the Premises.
All interior janitorial services within the Premises of any nature whatsoever are to
be performed by Tenant at Tenant's expense
13. GLASS, DAMAGE, REPAIRS: In ewe of the destruction of or any damage to
the glass in the Premises from any cause whatsoever, or the destruction of or da aage of any kind
whatsoever to the premises or any other part of the Shopping Center caused by the care less ness,
negligence or anproper conduct an the part of Tenant or Tenant's agents, employees, the said
licensees, invitees, subterrsnw, any assignees. otp uccessors, Tenant shall promptly reps the the case
damage or replace or restore an destroyed arts of the Premises or Shopping Cciiier, as
may be. at Tenant's own cost and expense.
14. COMPLIANCE WITH LAWS: Tenant shall, at Tenant's cost and expense,
promptly comply with all federal, state and local laws, ordinances, rules, regulations.
tequirements and directives ("Laws') applicable to and affecting the Premises or their, including,
without limitation, all Laws concerning the presence, use and disposal of hazardous substances.
and shall promptly comply with all orders, regulations, rcquirernenrs and directives of the Board
of Firc Undetwriters or similar authority and of any insurance companies which have issued or
about to i.+6ue policies of insurance covering the Premises or its contents, for the prevention of
fire or other casualty, damage or injury.
15, INSPECTION AND ?,EPAIR: Tenant agrees that Landlord and Landlord's agents,
employees or other representative:a shall have the right to enter into and upon the Premises or any
part thereof, at all reasonable hours, for the purpose: of examining the same or making such
repair or alterations therein as may be necessary for the safety and preservation thereof. This
Section shall not be deemed to he a covenant by Landlord nor be construed to create an
obligation on. the part of Landlord to snake such irecpectiazr or repairs.
16. SERVICES: The following services have been installed within the premises: (i)
electrical service; (ii) water service; and (iii) sewer connection. Landlord mattes no warranty or
representation concerning the condition of such-scrvicca or the adequacy of the same to serve
?. Tenant's use of the Premises.
W710:0r m
l7. INSURANCE : Tenant shall, at Tenant's sole cost and expense, carry at all times
during tau: Term comprehensive general liability insurance with respect to Tenant's use of die
pmtnises under a policy or policies which shall have a combined single limit for any one (1)
occurrence of tot less than'] Two Million Dollars ($2,000,000) for personal injury, bodily injury,
death and damage of injury to or destruction of ptnpcrty occurring upon, in or about the Premises
and for broad form conpractual liability assumed under this Lease. All such policies shall be
provided by insurers reasonably acceptablr to Landlord and audtorixed to do business in the rovid Commonwealth of Pennsylvania, shall name Landlord as additional censured a M halllrpio vice Pri
that they may not be cancelled without thirty (30) days prior the expiration of the
Commencement Date, and thereafter not less than thisry (30) days prior to
insurance policies theretofore furnished, Tenant shall provide Landlord with certificates of
insurance in a form satisfactory to Landlord cvidencbig the existence and/or renewal of such
policies. Tenant shall also maintain all risk fire and extended coverage on a repair and
replacement basis on all improvements to the Premises, and on Tenant's trade fixtures,
furnishings. equipment and personality located at the premises. Tenant shall also maintain such
other insurance in effect as may be reasonably required by Landlord from time to time.
19. INCREASE OF INSURANCE RATES: If by reason of the sae to which the
Premises are put by Tenant or character of or the manner in which Tenant's business is carried
on. Landlord's insurance rates for fire and other hasards shall be greater than normally charged,
such additional payment usual be the obligation of Tenant, and Tenant shall, upon demand, pay to
Landlord, as Additional Rent, the additional premium for such increased insurance.
19. INDEMNIFICATION: Tenant shall indemnify and hold bannless Landlord from
and against any and all damages, liabilities, claims, losses. payments, expenses, judgments and
costs (including attorney's fees) for damage to property or injuries to persons occasioned wholly
or in part by or resulting from any act or omission of Tenant or Tenant's agents, employees,
guests, licensees, invitees, subtenants, assignees or successors; or arising by reason of a breach by
Tenant of any obligation of Tenant under this Lease: or attributable in whole or in part to
Tenant's use of the Premises or the conduct of Tenant's lxtsiness therein.
20. FIRE AND OTM CASUALTY: In case of fire or other casualty. Tenant shall
give immediate nonce to Landlord. If the Premises shall be partially damaged by fire, the
elements or other casualty, Landlord shall repair the same as speedily as practical, but Tenant's
obligation to pay the rent hereunder :shall not cease. If, in the opinion of Landlord, the Premises
are so extensively and substantially damaged as to rendex them untenantabie, then the rent shall
cease until such time as the Premises shall be made tenantable by Landlord. However, if, in. the
opinion of Landlord, the Premises are totally destroyed or so extensively and substantially
damaged as to require practically a rebuilding thereof, then the rent shall be paid up to the time of
such destruction and this Lease .hall then come Lo an end. In no event, however, shall the
provisions of this Section become effective or be applicable if the fur; or other casualty and
damage shall be the result of the carelessness, negligence or improper conduct of Tenant or
Tenant's agents, employees, guests, licensees, invitees, subtenants, assignees or successors. In
such case, the performance of all covenants, condition:: and terms hereof on Tenant's part to be
performed shall continue and Tcnant shall be liable to Landlord for the damage and loss suffered
,s_iios.n[i s
by Landlord. if Tenant shall have been insured against any of the risks herein covered, then the
proceeds of such insurance shall be paid over to Landlord to the extent of Landlord's costs and
expenses to make the repairs hereunder, and such insurance cUncrs shall have no recourse
against Landlord for rcimburFernent•
21. RELEASE AND WAIVER OF SUDROGATION: Tint releases Landlord and
Landlord's agents, employces and other representatives from any and all liabairy or responsibility
to Tenant or anyone claiming through or under Tenant: by way of subrogation of otherwise for any loss or dunage to property of Tenant covered by insurance renuirrd to be tmuntamed under
this Lease (whether or not actually maintained.) The Tenant shall obtain from Tenant's insurance
carriers and will deliver to Landlord waivers of the subrogation rights which suds insurers might
otherwise have under such policies.
22. CONDEMNATION: EMINENT DOMADI: If the land and Preen ises leased
herein, or of which the Premises are a part, or any portion thereof, should be tame" under the
eminent domain or condemnation proceedings, or if suit or other action shall be initiated for the
taking or condemnation thereof, or if in lieu of any formal condemnation proceedings or actions,
Landlord shall grant an option to purchase atul or shall sell and convey the Pr Muse or any
portion thereof, to the govailmental or other public authority, agency. body or public utility,
seeking to take said land and Premises or any portion, thereof, then this base. at th hati nx of
Landlord, shall terminate, and the term hereof shall end as of such dare as Lan
notice in writing. and Tenant shall have no claim or tight to claim or be entitlC,d to any portion of
any amount which may be awarded as damages or paid as the result of such condetnnation
proceedings or paid as the purchase price for such option. Sale or conveyance to lieu of formal
condemnation proceedings; and all rights of Tenant to damages. if any. are hereby assigned to
Landlord. The Tenant agrees to execute and deliver any instnhmeats, at the exptnae of Landlord,
as may be deemed necessary or required to expedite condemnation proceedings or to effectuate a
proper transfer of title to such governmental or other public authority. agency, body or public
utility seeking to take or acquire the said lands and premises or any portion thereof. The Tenant
covcuaats and agrees to vacate the said Pretnise3, remove all Tenant's persort.ai property
therefrom and deliver up peaceable passcssion thenmf te, landlord or such other party designated
by Landlord in the aforementioned notice. Failure by Tenant to eornplY With any provisions in
this clause shall subject Tenant to such costs, expenses, damages and losses as Landlord nney
incur by reason of Tenant's brtwh hereof.
23. ME-CHANICS' LIENS: Tenant shall provide Landlord with a copy of a Waiver of
Mechanics Liens validly filed in Cumberland County prior to undertaking any construction
authorized by Landlord. if any mechanics' or other liras shall be created or filed against the
Premises by reason of labor performed or materials fumilsh!ed for Tenant in the erection,
construction, completion, alteration, repair or addition. to any building or improvement. Tenant
shall within fifteen days thereafter, ar Tenant's own cost and expense, cause such lien or liens to
be satisfied and discharged or record. Pailare so to do shall enritic landlord to exercise such
remedies ac are provided herein in the ease of any default of this lease, in sd anon m such as are
pennitted by law.
r.:11e:r.145
J
24. ESTOPPEL CERTIFICATE: Tenant shall. at any time and from time to time, at
the request of Landlord, upon ten (10) business days notice, execute and deliver to Landlord a
certificate in the farm of Exhibit "A" attached hereto or any other reasonable form supplied by
Landlord, it being intended that any such ccrtificate delivered pursuant h hereto may Landlord n bc relied spon
by others with whom Landlord may be dealing. Tenant hereby appo as Tenant
nuoroey-in-fact to execute any such certificates in the event. Tenant does not execute and return
such certificates within the time period set faith above.
25. MORTGAGE PRIORITY; ATTORNMEW: This Lease shall he subject and
subordinate to any mortgage, and all renewals. modifications, consolidations, replacements and
extensions thereof, which may now or hereafter be placed upon the Premises or any part thereof,
without requirement of further documentation. Notwithstanding the foregoing, Tenant agrees to
execute any instruments, without cost, which may be deemed necessary or desirable, to further
effect the subordination of this Luse to any such mortgage or mortgages. A refusal by Tenant to
execute such instruments shall entitle Landlord to the option of cancelling this Lease, and the
Term hereof is hereby exprr-gsly limited accordingly. If arty person shall succeed to all or part of
Landlord's interest in the Premise, whether by purchase, foreclosure, deed in lieu of foreclosure
or otherwise, and if so requested by such successor in interest, Tenant shall attom to such
successor and shall execute any instruments, without cost, which may be deemed necessary or
desirable to confirm such anotnment.
26. NOTICES: All notices required under the terms of this Lease shall be given and
shall be deemed complete by mailing such notices by cell ified or registered mail, return receipt
requested or by reputable overnight delivery service, to the address of the parties as shown at die
'J head of this Lcase, or to such other address as may be designated in writing, which notice of
change of address shall be given in the same mantier.
27. ASSIG14ML•NT: The Tenant shall not, without the written consent of Landlord,
assign, mortgage or hypothecate this Lease, nor sublease the Premises or any part thereof. If
Tenant requests Landlord's consent to an assignment or sublease of all or part of the Premises,
Landlord shall have the right to recapture the Premises. If Landlord consents to an assignment of
the Lease or a sublease of all or part of the Premises, one WE of any profit or additional
consideration or rent in excess of the rent payable by Tentant hereunder shall be paid by Tenant to
Landlord as Additional Rent when received by Tenant. In the event of any assignment or
subleasing of the Premises, Tenant shall remain primarily liable corder this Lease. Landlord's
consent to any assignment or subleasing of the Premises shall not be deemed to constitute
consent to any subsequent assigmucnt or subleasing.
28. SALE OF PROPERTY: In the event of a salt of the property, this Lease shall be
assigned to the new owner and remain in full force and i ffect. The assigning Landlord shall not
be liable for any obligations under the Rase from and after the date of such assignment.
29. DEFAULT: Any other provisions in this Lease notwithstanding. it shall be an
event of default ("Event of Default") under this Lease if: (i) Tenant fails to pay any installment of
Base Rent, Additional Rent or other sum payable by Tenant hereunder when due, or (ii) Tenant
fails to observe or perform any odter covenant or agreement of Tenant herein contained and such
.rnn :+r-,mt
failure continues after written notice given by or on behalf of Landlord to Tenant for more than
fifteen (15) days, or (iii) Tenant uses or occupies the Premises other than as permitted hereunder,
or (iv) Tenant assigns or sublets, or purports to assign or sublet, the premises or any part thereof
other than in the manner and upon the conditions set forth herein, or (v) Tenant abandons or
vacates the Premises or, without Landlord's prior written consent, Tenant removes or attarnpts to
remove or manifests an intention to remove any or all of Tcrranes property from the Premises
other than in the ordinary and usual course of Tenant's business, or (vi) Tenant files a petition
conunencing a voluntary case, or has filed against it a petition, commencing an involuntary caw,
tinder the Federal Bankruptcy Code (Title 11 of the United Sums Code), as now or hereafter in
effect, or under any siuular law, or files or has filed against it a petition or answer in bankruptcy
or for reorganization or for an arrangement pursuant to any state bankruptcy law or any similar
state law, and, in the case of any such involuntary action, such action shall not be dismissed,
discharged or denied within sixty (60) days after the filing; thereof, or Tenant consents or
acquiesces in the filing thereof, or (vii) if Tenant is a banking organization, Tenant files an
application for protection, volunrwy liquidation or dissolution applicable to banking
organizations, or (viii) a custodian, receiver, trustee or liquidator of Tenant or of all or
substantially all of Tenant's property or of the Premises shall be appointed in any proceedings
brought by or against Tenant and, in the latter case, such endry shall not be discharged within
sixty (60) days after such appointment or Tenant consents to or acquiesce in such appointment,
or (ix) Tenant shall generally not pay Tenant's debts as such debts become due, or shall make an
assignment for the benefit of creditors, or shall admit in writing iv% inability to pay its debts
generally as they become due, or (x) any of the foregoing, occurs as to any guarantor or surety of
Tenant's performance sunder this Lease, or such guarantor or surety defaults on any provision
under its guaranty or suretyship agreement- The notice and grace period provision in clause (ii)
above shall have no application to the Events of Default referred to in clauses (iii) through (ix)
above or, to the extent applicable, (x).
30. LANDLORD'S REMEDIES: Upon the occurrence of any Event of Default.
Landlord at any rime thereafter may at its option exercise any one or more of the following
remedies:
a. Landlord may terminate this Lease, by written notice to Tenant, without
any right by Tenant to reinstate its rights by payment of rent due or ocher performance of the
terms and conditions hereof. Upon such termination Tenant shall immediately surrender
possession of the Premises to Landlord, and Landlord shall immediately become entitled to
receive from Tenant an amount equal to the difference between the -aggregate of all Base Rcat
and Additional Rent reserved under this Lease for the balance of the Term, and the fair rental
value of the Premises for that period, determined ac of the date of such termination.
b. Landlord may, at Lan ord's ODtion, with or without terminating this
Lease, enter upon the Premises and remove any and all persons therefrom and take and retain
possession thereof by any mean, available to Landlord, including summary dispossess
proceedings. If Landlord elects to terminate Tenant's right to possession only. without
terminating the Lease, Landlord may, at Landlord's option, enter into the Ptymiser, remove
Tenant's signs and other evidences of tenancy, and take and hold possession thereof as
hereinabove provided, without such entry and possession terminating the Lease or releasing
W11 Al VP AS
Tenant, in whole or in part, from Tenant's obligations to pay the rent hereunder for the full term
or for any other of its obligation under this Lease. Landlord may, but will not be under
obligation to, relet all or any part of the Premises in any manner, for any term, for such rent and
upon terms satisfactory to Landlord and may decorate or make any repairs, changes, alterations
or additions in or to the Premises that may be necessary or convenient. If Landlord does not relet
due Premises. Tenant will pay Landlord on demand all amounts due from Tenant w Landlord
under this Lease for the remainder of the Term. If the Premises are relet, Tenant shall pay any
excess of the rent over the actual proceeds of such reletting, net of all expenses, including repairs
or comitruction costs and leasing commissions. Landlord turd Tenant agree that Landlord shall
have no obligation to mitigate Landlord's damages under this Lease, LIf the andlord may, ses are a et he Tcrians
tune of any Event of Default sublet or leased by Tenant to others, such rents to the rent and
agent, collect rents due from any subtenant or other tenant and apply
other amounts due hereunder without in any way affecting Tenant's obligation to Landlord
hereunder. Such agency, being given for security, is hereby declared to be irrevocable.
C. Landlord may declare Bass Rent and all items of Additional Rent (the
amount thereof to be based on historical amounts anti landlord's estimates for future amounts)
for the entire balance of the then current Term immediately due and payable, together with all
other charges, payments, costs, and expenses payable by,rnant as though such amounts were
payable in advance on the date the Event of Default occurred.
d- Landlord may remove all persons and property from the Premises, and
store such property in a public warehouse or elsewhere at the cost of and for the account of
Tenant without service of notice or resort to legal process (all of which Tenant expressly waives)
and without being deemed guilty of trespms or becaming liable for any loss or damage which
may be occasioned thereby.
C. No right or remedy herei?t conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy. and every right and remedy shall be
cumulative and in addition to any other right or remedy given hereunder or now or hereafter
existing at law or equity. Without limitation of the foregoing. Landlord shall be entitled to
injunctive relief in ca--se of the violation, or attempted or threatened violation, of any covenant,
agreement, condition or provision of ibis Lease, or to a decree compelling performance of any
covenant, agreement, condition or provision of this Lease, or to any other remedy allowed by law
or equity.
f. If proceedings shall be commenced by Landlord to recover possession of
the Premises, either at the eud of the Term or upon the earlier termination of this Lease, or for
non-payment of rent or any other reason, Tenant specifically waives the right to any notices now
or hereafter required by law, and agrees that no notices other titan those set forth in this Lease
shall be required.
g. No expiration or termination of this Term by operation of law or otherwise
(except as expressly provided herein), and no repossession of the Premises or any part thereof
shall relieve Tenant of its liabilities and obligations hereunder, oil of which shall survive such
19171u.: 012110 9
expiration, termination or repossession, and Landlord may. at its option, stsr ncocrumd collect nil
rent and other charges due hereunder at any tirne as and when +uch chmgc
h. Tenant hereby expretsly waives any and all rights of redemption granted
by or under any present or future law in the event this L.c&,x is terminated, or ira the event of
Landlord obtaining possession of the Premises, or in the event Tenant is evicted or disposseaeed
for any cause. by reason of violation by Tenant of any of the provisions of this Lease.
i. The receipt by Landlord of any rent or other sum payable hereunder, with
knowledge ofthe breach of any covenant or agreemait (other than the prior failure to pay such
rent or other sum) shall not constitute a waiver or cure of such breach or prevent Landlord from
exercising any of its rights or remedies hereunder on account of Tenant's breach.
j. In the event that Landlord commences suit for the repossession of the
Premises, for the recovery of rent or any other amount due under the provisions of this Lease, or
because of the breach of any other covenant herein contained on the pmt of Tenant to be kept or
performed, and a breach shall be established. Tenant shal l pay to Landlord all expenses incurred
in connection therewith, including reasonable anomeys' fees.
31. CONFESSION Ol JUDGMENTS-
a. CONFESSION OC IUDGMENT FOR R) ENT. TENANT
IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY AND
CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST TENANT FOR SUCH RENT AND OTHER SUMS
AS ARE DUE AND/Ok MAY BECOME DUE UNDER THIS LEASE, WITHOUT STAY
OF EXECUTION AND WITH AN ATTORNE'Y'S COLLECTION F OF FIVE
PERCENT 159' ) OF THE AMOUNT DUE (BUT NOT LESS THAN $1,000.00), WHICH
IS REASONABLE AS AN ATTORNEY'S FEE. TO THE EXTENT PERMITTED BY
LAW, TENANT RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IV A
VERIFIED COPY OF THIS LEASE IS FILED, IT SHALL NOT BE NECESSARY TO
FILE THE ORIGINAL LEASE. THE AUTHORITY AND POWER TO APPEAR FOR
AND CONFESS JUDGMENT AGAINST TENANT SHALL NOT BE EXHAUSTED BY
THE INITIAL EXERCISE THEREOF AND MAY BE CONFESSED AS OFTEN AS ANY
EVENT OF DEFAULT OCCURS. SUCH AUTHORITY MAY BE EXERCISED
DURING OR AFTER THE EXPIRATION OF'THF LEASE TERM AND/OR DURING
OR AFTER THE EXPIRATION OF ANY EXTENDED OR RENEWAL TERM.
b. CONFESSION OF, 'DGK NT FOR POSSESSION: TENANT
IRREVOCABLY AUTHORIZES AND EUWOWEILS THE PROTHONOTARY AND
CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND
CON - S JUDGMENT AGAINST TENANT FOR POSSESSION OF THE PREMISES,
WITHOUT STAY OF EXECUTION. TO THE EXTENT PERMITTED BY LAW,
TENANT RELEASES ALL ERRORS IN SUCH P140CEEDINGS. 17 A VERIFIED
COPY OF TIES LEASE IS FILED, IT SHALL NOT BE NECESSARY TO FILE THE
ORIGINAL LEASE. THE AUTHORITY AND POWER TO APPEAR FOR AND
NO 1"1. 441.4% 10
CONFESS JUDGMENT AGAINST'I,MNANT SHALL NOT BE EXHAUSTED BY THE
INITIAL EXERCISE THEREOF AND MAY BE CON" SSED AS OFTEN AS ANY
EVENT OF DEFAULT OCCURS. SUCH AUTHORITY MAY BE EXERCISED
DURING OR AFTER THE EXPIRATION OF THE TMM AND/OR DLTMGG SUCH
ALTER TIM: EXPIRATION OF ANY EXTENDED Olt RENEWAL TERM.
PROCEEDING IS TERMINATED AND POSSESSION OF THE PREMISES REMAINS
IN OR IS RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR
THE SAME EVENT OF DEFAULT AND UPON ANY SUBSEQUENT EVENT OR
EVENTS OF DEFAULT, OR UPON THE TERMINATION OT THIS LEASE UNDER
ANY OF THE TERMS OF THIS LEASE, TO BRING ONE OR MORE FURTHER
ACTION OR ACTIONS F RECOVER OVERY O POSSESSION O THE PRE?ES
CONFESS JIIDGMISNT
AS HEREINABOVE PROVIDED.
C. REPRE guA ONS. TENANT HEREBY REPRESENTS THAT
(A) TENANT IS KNOWLEDGEABLE IN BUSINESS MATTERS, (B) PL?oAL
FOR BUSINESS OR COMMERCIAL PURPOSES ONLY AND NOT F
OR RIC AND (C) AFORESAID THE
WARRANTS OF ATTTORNE?Y TO CONFESS JUDL GMCNT REVIEWED T
OWN COUNSEL.
d, WAIVER OF RIGHTS: SUBSECTIONS 24.6.1 AND 24.61 ABOVE
SET FORTH WARRANTS OF ATTORNEY TO CaNTESS JUDGMENTS AGAINST
TENANT. IN GRANTING TIM,SE WARRANTS OI+ ATTORNEY TO CONFESS
JUDGMENTS AGAINST TENANT, TENANT HEREBY KNOWINGLY,
INTENTIONALLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES ANY AND
ALL RIGHTS TENANT HAS OR MAY HAVE TO PRIOR NOTICES AND AN
OPPORTUNITY FOR HEARING UNDER Till; RESPECTIVE CONSTITUTIONS AND
LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF
PENNSYLVANIA.
Underneath It All ("TENANT")
B.
Print N
Title.
32. CURE BY LANDLORD: if Tenant shall fail or refuse to comply with and
perform any conditions and covenants of the within Lease. Landlord may, if Landlord so elects,
carry out and perform such conditions and covenants, at the cost and expense of Tenant and the
said cost and expense shall be considered Additional Rent- Such Additional Rein shall be
payable on demand or, at the option of Landlord, shall be added to the installment of Base Rent
due immediately thereafter. Landlord's rigbtc set forth in this Section shalt be in addition to such
other remedies as Landlord may have under this Lease by reason of Tenant's breach of the
`., covenantt and conditions in this Lease contained.
9411:1:,riat 1 I
33. REMOVAL OF TENANT'S PROPERTY: Any equipment, fixtures, goods or
other property of Tenant not removed by Tenant upon the termination of this Lease, or upon any
quitting, vacating or abandonment of the Premises by Tenant, or upon Tenant's eviction, shall be
considered abandoned and landlord shall hive the right, without any notice to Tenant to sell or
otherwise dispose of the same. at the expense of Tenant. and shall not be accountable to Tenant
for any part of the proceeds of such sale, if any. Landlord's rights set forth in this Section :;hall
be in addition to such other remedies as Landlord may have tinder this Lease by reason of
Tenant's breach of the covenants and conditions in this Lease contained.
34. NON-WAIVER BY LANDLORD: The various rights, remedies, options and
elections of Landlord, expressed herein are cumulative, and the failure of Landlord to enforce
strict performance by Tenant of any of the conditions and covenants of this Lease or to exercise
any elections or option, or to resort or have -recourse to any remedy herein conferred or the
acceptance by Landlord of any installment of rent after any breach by Tenant, in any one or tnore
instances, shall not be construed or deemed to be a waiver of a relinquishment for the future by
Landlord of any such conditions and covenants, options, elections or remedies, but the same shall
continue in full force and effect.
35. LIABILITY OF LANDLORD: Tenant shill look solely to the Shopping Center
and the rents derived thcncfiom for enforcement of any obligation hereunder or by law assumed
or enforceable against Landlord, and no other property or assets of Landlord shall be subject to
levy, execution or other enforcemeat proceeding for the satufacdon of Tenant's remedies or with
respect to this Cerise. Landlord shall not be-liable for any damage or injury which may be
sustained by Tenant or any other person, as a consequence: of the failure, breakage, leakage or
obstruction of the water, plumbing, steam, sewer, waste or soil pipes, roof drains, leaders.
gutters, valleys, down spouts or the like or of the electrical, gas power, conveyer, refrigeration,
.sprinkler, air-conditioning or heating systems, elevators or hoisting equipment; or by reason of
the elemems: or resulting from the carelessne.,s, negligence or improper conduct on the part of
any other Tenant or of Landlord (except for intentional acts of Landlord) or Landlord's invitees,
subtenants, assignees or successors; or attributable to any interference with, interruption of or
failure, beyond the control of Landlord, of any services to be furnished or control of Landlord, of
any services to be furnished or supplied by Landlord.
36. NON-PERFORMANCE Of LANDLORD: This Lease and the obligation of
Tenant to pay the rent hereunder and to comply with ft covenants and conditions hereof shall
not be affected, curtailed, impaired or excused, nor shall Landlord be liable for any cost or
damages incurred by Tenant, as a result of Landlord's failure to supply any service or material
called for herein by reason of any rule, order, regulation or preemption by any governmental
entity, authority, department, agency or subdivision; or during any period of repairs or alterations
at the Shopping Center; or by reason of negotiations for the adjustment of any fire or other
casualty loss; or because of strikes or other labor trouble; or for any other cause beyond the
reasonable control of landlord.
37. RULES AND REGULATIONS: Landlord expressly reserves the right now and in
the future to promulgate reasonable rules and regulations relating to the use of the Premises and
all Commit cress of the Shopping Center, which rules and regulations shall be deemed a part of
this Lease end breach of which shall entitle Landlord to exercise the remedies set forth in this
Lease or otherwise available to Landlord at law or in equity.
LANDLOKD's LMN:.In addition to the statutory Landlord's lien, Tenant hereby
grants to Landlord a security interest to secure payment of all root or other sums of money due
from Tenant, and to secure payment of any damage or loss which Landlord may stiffer by reason
of the breach by Tenant of any covenant, agreement, or condition contained here inTenant all ly
goods, wares, fixtures, furniture. improvements and other personal property present
or hereafter situated on the Premises. Such property shall not be removed front the Premises
without the consent of Landlord until all arrearages in rent as well as any other sums of money
due Landlord hereunder shall first have been paid, and all the covenants, agreements, and other conditions hereof have been fulfilled and performed by Temant. I addition to Wany ises and tall e
remedi&,: provided herein. upon an event of default, Landlord may enter possession of any and all goods, wares. equipment, fixtures, furniture, improvements and otlu-r
personal propcsry of Tenant situated upon the Premises without liability for trespass or
conversion. Landlord may sell the same at a public orprivate sale, wilt or without having such
property at the sale. TENANT HEREBY WAIM ANY RIGHT TO NOTICE AND
HEARING PRIOR TO THE LANDLORD'S E-KERCISE OF ITS RIGHT OF DISTRESS,
EITHER PURSUANT TO 68 PA.CS.A. §250.302 OROTHERWISE• At such esale, prohibited
Landlord or its assigns may purchase the property unless such p
by law. Unlr=s otherwise provided by law, the requirement of reasonable notice shall be met if
Such notice is given to Tenant at the Premises nt least five (5) days prior to the time of the sale.
The proceeds of such disposition shall be applied as a credit against the indebtedness secured by
the security interest granted in this paragraph, plus all expenses connected with the taking shall be
possession and sale of the property, including a reasonable attorney's fm Any surplus
paid to Tenant and Tenant shall pay any deficiencies upon demand- Tenant hereby authorizes
Landlord to file a financing statement in a manner sufficient to perfect the security interest of
Landlord in the aforementioned property and the proceeds thereof
39. HOLDING OVER: If Tenant shall continue to occupy The Premises after
expiration or sooner termination of this Lease, Tenant shall pay, as liquidated damages, for each
month of continued occupancy an amount equal to two times the monthly rent being paid by
Tenant hereunder for the month immediately prior to such holdover. Acceptance of such rent by
Landlord from Tenant after expiration or termination of this Lease shall not spree to reinstate or
extend this Lease or affect any prior notice given by Landlord to Tenant.
40. RIGHT TO EXHIBIT: Tenant agrees To permit Landlord and Landlord's agents,
employees or other representatives to show the Premises to persons wishing to rent or purchase
die same, and Tenant agrees that during the final six (6) months of the Term, Landlord or
Landlord's agents, employees act other rfepr?? giv the premall have ises for a rent or right fo place notices on the
front of the Premises or any p
41. RENTAL TAX: Tenant shall pay Landlord upon demand as Additional Rent the
amount of any rental excise, transaction, sales, business or privilege tax (except income tax)
urn a wn¦s 13
attributed to or measured by rental which is now or subsequently imposed upon Laricilord by any
government or unit thereof. ,
42. TENANT'S PROPORTIONATE SHARE: As used in this Lease, the term
"Tenant's Proportionate share'. shall refer to'a fraction, the numerator of which is the ground
floor square footage of the Premises and the denominator of which is the ground floor square
footage of xtl rem-able buildings in the Shopping Center, which shall be subject to adjustment for
increases and decreases in the square footage of the Premises and the rentable buildings in the
Shopping Center. Tenant's Proportionate Share at the commencement of this Lease is two and
sixth tenthq of one percent, rounded to nearest tenth of ane percent CZ.6° ,
43. TAXES AND ASSESSMENTS: Upon du: Tenant's exercise of any Renewal
Term, Tenant shall pay to Landlord in each calendar year. Tenant's Proportionate Share of Olt
Taxes (as defined hereafter). As used herein, the term "Ttxcs" shall mean all taxes and
assesstncuts levied or assessed against the Shopping Center, including general real property taxes
and assessments for public unprovements. Such amounts shall be paid by Tenant as Additional
Rent in monthly installments in advance, based upon Landlord's estimate of total Taxes for the
and provide e Tenant if ya to
calendar year. Following the end of each. calendar year, Landlord shall
statement setting forth the actual amount of Taxes for the calendar year
be paid by Tenant to Landlord for such calendar year, wluch amount shall be due within thirty
(30) days after receipt by Tenant of such statements, turch period, that such excess e..
for a calendar year are less than total tax payments bby Teuiant for s
shall be applied to Tenant's next succeeding Tax Payment.. During the initial Term of the Uwe,
Tenant shall pay to Landlord in each caletular year, Tenant's Proportionate Share of any
additional Taxes (as defined herein) that are assessed against the Shopping Center from the
Taxes paid by Landlord for fiscal year 2004-2005, such amour[ to be evidenced to Tenant if such
assessment occurs.
Should this Lease commence or tetminatn on a day other than the first day of the
calendar year, Tenant's share of Taxes for such partial year shall be pro-rated based an the
number of days of the Term which falls within such calendar year.
44. COMMON AREA SERVICES: Landlord shall furnish Tenant those services
hereafter described which shall be included in CAM (defused hereafter):
a. Illuminate parking area until 12:00 PM
b. Refuse container or containers
c. Exterior lighting on or around building
45. COMMON AREA MAfNTENANCE: Tenant shall pay to Landlord Tenant's
Proportionate Share of the cost incurred by Landlord, not to exceed $0.50 cents per square foot,
in operating, maintaining, repairing, and replacing the common areas and facilities of the
Shopping Center ("CAM"), including, but not limited to. Landlord's costs of painting. signing,
lighting, cleaning, striping. policing and security and snow, removal, premiums for liability.
casualty and other insurance maintained by Landlord, repairs to and replacements of paving,
roofing, curbs, walkways, landscaping, drainage, pipes, ducts, conduits lighting and other
WMI.N:11010 14
J
_J
common facilities and structures, garbage collection and disposal, and common sewer, water.
electric and other utilities, but CAM casts shall not include rental agency and rnanagerttent fees
that Landlord may incur.
At the commencement of each calendar year, Landlord shall provide Tenant with
an estimate of the total projected costs of CAM for such calendar year. During such calendar
year, Tcunt shall pay, in advance, each month, one twelfth of Tenant's Proportionate Share of
such projected CAM cost, as Additional Rent. Following the end of cacti calendar year.
Landlord shall provide Tenant with a statement setting forth the actual amou?u of CAM costs for
the calendar year, Tenant's Proportionate Share of such costs, and the amount of CAM, if any,
still to be paid by Tenant to Landlord for such calendar year, which amount ;shall be due within
thirty (30) clays after receipt by Tenant of such statement. In the event that the actual amount of
Tenant's Proportionate Share of CAM costs for a calendar year are less than total CAM payment%
by Tenant for such period, then such excess shall be applied to Tenant's next succeeding CAM
payrncnt.
Landlord may, from tune to time during a calendar year, make reasonable
adjustments to Tenant's monthly CAM payment to account for differences between actual CAM
costs and Landlords projection of CAM costs for such cateadar year.
If any repair or replacement shall be a capi tat expenditure, CAM cost shall
include the amortized cost of such repair or mplacement, based upon its useful life. Should
municipal refuse disposal be provided and [bete shall be no charge for such service, then it shall
be Tenant's responsibility to take rare of and provide its own refuse containers and arrange for
collection and disposal of the sairte. Such containers :shall be placed at a location selected by
Landlord nor sooner than 5.00 pm. the day before pickup and shall be removed by Tenant not
later than 5:00 p.m. the day of the pickup and shall he sttmd in the Premises.
Should this Lease conunctnce or terminau: on a day other than the first day of the
calendar year, Tenants share of CAM cost% for such partial year shall be pro-rated based on the
number of days of the Term which falls within such calendar year.
46. ROOF: Landlord shall have the mcluhive right to use and install ttluiprnent on
the roof of the building in which the Premises is located, provided that such use, and the
installation of such equipment, shall not interfere with Te natrt's use of the Premises atl 4S2
47. SECURITY: As sccuric r the performance of i bligations here trader, upon
execution of this tease, Tenant hasp d to Landlord, and afire to maintain thereafter, a security
deposit of One Thousand and Dollars (3 , ). Upon the occurrence of any
event of default hereunder, Landlord may, from time to time, without prejudice to any other
remedy, use the security deposit to the extent necessary to make good any arrears of Base Rent or
Additional Rend or any other loss or damage of Landlord, and Tenant shall thereafter
immediately replenish the all or such portion of the security deposit so used by Landlord. The
remaining balance of the security depo:rit shall be returned by Landlord to Tenant within a
reasonable time afar termination of this Lease; provided, however, that Landlord shall not be
?• obligated to return the remaining balance of such aecurity deposit until all payments due from
W"'Ja_oni m 1$
Tenant to Landlord under this Lease shall have been made in full. The security deposit shall not
be considered and advance payment of reut or a measure of Landlord's damages in case of default
by Tenatu Tenant shall receive no interact on such security deposit and Landlord mey
commingle the same with other monies of Landlord. In the event of a sale or transfer of
Landlord's interest in the Premises, Landlord shall have the right to transfer the security deposit
to the purchaser or transferee and upon such transfer Tenant shall look only to tho new, landlord
for the return of the security deposit and Landlord shall thereupon be released from all liability to
Tenant for the return of or accounting for such security deposit.
48. VALIDITY OF LEASE. The terms, conditions, covenants and provisions of this
Lease shall be deemed to be severable. If any clause or provision herein contained shall be
adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of
any applicable law, it shall not affect the validity of any other clause or provision herein, but such
other clauses or provisions shall remain in full force and effect.
49, ENTIRE CONTRACT: This Lease contains tine moire contract between the
parties. No representative, agent or employee of Landlord has been authorized to make any
representations or promises with reference to the within letting or to very, alter or modify the
terms hereof. No additions, changrs or modifications, renewals or extensions hereof, shall be
binding unless reduced to writing and signed by Landlord and Tenant.
50. GENDER AND BINDING EFFECT: fn all references herein to any parties,
persons, entities or corporations and the use of any particular gender or the plural or singular
number is intended to include the appropriate gender or number as the text of the within
instrument may require. All the terms, covenants and eoadirions herein contained shall be for
and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs,
executors, administrators, personal or legal m-presentative, successors and assigns.
51. . FORCE MAJEURE: This Lease and the time of performance of the obligations
of both Landlord and Tenant hereunder shall be extended to the extent reasonably necessary to
accommodate any rule, order, regulation or preemption by any governmental entity, authority,
department agency or subdivision promulgated subsequent to the date of this Lease.
52, JOINT AND SEVERAL LIABILITY: If two or more individuals, corporations.
partnerships or other business associations (or any combination of the above) shall sign this
Lease as Tenant, the liability of each such executing party to pay rent and perform all other
obligations of Tenant horeunder shall be joint and several.
53. APPLICABLE LAW: This Lease shall be contaued in accordance with the laws
of the Commonwealth of Pennsylvania.
ec7 u1.: M- I'm 16
[ I .
54. WAIVER OF JURY TRIAL.
J TENANT HEREBY WAIVES TRIAL BY JMY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, TI& RELATIONSHIP OF LANDLORD AND
TENANT, Y TENANT'S USE, OR OR DAMAGE. RO
OF INJURY ANY OTHER REMEDY WITH RESPECT THE, RE, TO.
IN WITNESS HEREOF, the parties hereto have hereunto set their hands and
seals, or caused thesc presents to be signed by their proper and corporate officers mid their proper
corporate seal to be hereto affixed. the day and year first above written.
STATE COLLEGE PREMIER RENTALS. L.P.,n
`..
w.??n:rni.ro
17
I
Exhibit "A"
J E,ST(1I'1' CitjI 1FICA7'E
The undersign ("Tenant"), hereby ccrtifits that:
1. At?exed o as Exhibit "A" j? a true and correct copy of the lease
dated as of the day of .200_, by and between the undersigned, as Tenan[, and
Saate College Fremier Rentals. P., as Landlord ("Landlord"). coveting terrain space
("Premises") identified Si Store if? in the Shopping Center known as Hoover's plaza in
Lemoyne, Pennsylvania,.
2 The Lease is valid and in full force and effect on the date hereof. The taunination
date of the present terra of the Lease, excluding renewals, is -103-0557'D
3, There are no other agreements between Landlord and Tenant with reapecc to the
Premises.
4. To Tenant's knowledge, there are no uncured &faults on the part of Tenant or oil
the pan of Landlord under the Lease, and no event has occurred and no condition exists which,
with the giving of notice or the lapse of time, or both, will constitute a default under [he Lease.
5. Fixed Rent payable by Tenant presently is $r- Per month. Additional
Rent (including Tenant's share of taxtc and common area maintenance costs) payable by Tenant
presently is $ per month. No rent has been paid by Tenant more than thirty (30)
days in advance of its due date. Tenant's security deposit is $
6. Tenant claims no present charge, lien or claim of offset under the Lease or
otherwise, against rents or other charges due or to become due thereunder.
7. Tenant has accepted possession of the Premises and any improvements required
by the terms of the Leasc to be made by Landlord thereunder have been completed to the
satisfaction of Tenant.
8. The address for notices to be sent to Tenant is as set forth in the Lease.
My amcndmenrs ur modificatiO45 to the lease should be li)tmd here:
OW 10.. Yc,n3
9, Tenant has no right of first refusal, option or other right to purchase the Premises
or the Building.
"this Estoppel Certificate may be relied upon by Landlord and
and their successors and assignees.
?? undersigned has ex ted and delivered this Estoppel
IN WTrNES,
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
STATE COLLEGE PREMIER
RENTALS, L.P. :
Plaintiff,
vs.
KIMBERLY S. BANZHOFF, t/d/b/a
UNDERNEATH IT ALL,
Defendant.
Civil Action No. (%`7 - /? t LO'L `mil
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of the undersigned counsel on behalf of Plaintiff,
State College Premier Rentals, L.P.
Respectfully submitted,
MILLER, KISTLER, CAMPBELL,
MILLER, WILLS & BENSON, INC.
By:
Date: March 15, 2007
David B. Closiglio, Esquire
I.D.# 72772
720 South Atherton Street
State College, PA 16801
(814) 234-1500
f . .1
IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
KSB ENTERPRISES, INC. t/a
UNDERNEATH IT ALL, Civil Action No. 07-991
Plaintiff,
vs.
STATE COLLEGE PREMIER DECLARATORY JUDGMENT
RENTALS, L.P., :
Defendant. :
CERTIFICATE OF SERVICE
I, David B. Consiglio, Esquire, of Miller, Kistler, Campbell, Miller, Williams &
Benson, Inc., do hereby certify that on this 15th day of March, 2007, a true and correct copy
of the foregoing document was served on the following person by depositing the same in the
United States Mail, postage prepaid, addressed as follows:
John W. Purcell, Jr.
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
MILLER, KISTLER, CAMPBELL,
MILLER, WILLS & BENSON, INC.
By:
David B. C b Isiglio, Esquire
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John W. Purcell, Jr.
I.D. 29955
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
(717) 234-4178
ipurcell(j?pkh.com
STATE COLLEGE PREMIER RENTALS, L.P.
Plaintiff
VS.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
: NO. 2007-1528
KIMBERLY S. BANZHOFF, t/d/b/a
UNDERNEATH IT ALL, : CIVIL ACTION-LAW
Defendant
PETITION TO OPEN OR STRIKE JUDGMENT
1. The Petitioner is Kimberly S. Banzhoff, the Defendant in the above captioned matter.
2. The Respondent is State College Premier Rentals, L.P., the Plaintiff in the above
captioned matter.
3. On or about March 21, 2007, the Plaintiff filed a Complaint for Confession
of Judgment against the Defendant Kimberly S. Banzhoff t/d/b/a Underneath It All in the amount
of $61,160.47.
4. The Complaint for the Confession of Judgment is invalid and should be stricken by
reason of the following:
A. The Defendant who is named in the Complaint for Confession
of Judgment is an individual, to whom the Plaintiff has attributed
the fictitious name Underneath It All.
B. The name "Underneath It All" is a registered fictitious name for KSB
Enterprises, Inc., a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania, with an address of 632 Devon Road, Camp Hill,
Pennsylvania 17011.See attached Exhibit "A".
C. Kimberly S. Banzhoff is the President and sole stockholder of KSB
Enterprises, Inc.
D. The Lease attached to the Complaint for Confession of
Judgment, on which the confessed judgment is based, indicates that
the name of the tenant is Underneath It All c/o Kimberly S.
Banzhoff with an address of 632 Devon Road, Camp Hill,
Pennsylvania 17011.
E. The Lease is signed on behalf of the "tenant" by Kimberly S.
Banzhoff on the last page.
F. The Confession of Judgment clause, paragraph 31, clearly states
that the name of the tenant is "Underneath It All", not Kimberly S.
Banzhoff.
G. As is indicated by the Lease document, the Lease was entered
into between State College Premier Rentals, L.P., the Plaintiff and
KSB Enterprises, Inc. a corporation t/a Underneath It All, not
Kimberly S. Banzhoff in her individual capacity.
H. On February 21, 2007, KSB Enterprises, Inc. t/a Underneath It
All filed a Complaint for Declaratory Judgment requesting, inter
alia, that the Lease attached as Exhibit "A" to the Complaint for
Confession of Judgment be declared null and void for the reason
set forth therein. A copy of the Plaintiff's Complaint is attached
hereto and made a part hereof as Exhibit "B".
1. The Plaintiff, State College Premier Rentals, L.P., has filed
Preliminary Objections to the Complaint, which are presently
pending before the Court.
J. The Lease was prepared by the Plaintiff and all ambiguities
should be construed in favor of the Defendant.
WHEREFORE, the Petitioner requests the Honorable Court to issue a Rule upon the
Plaintiff why the relief requested, to wit, the opening and/or striking off of the judgment should
not be granted, with all proceedings to stay meanwhile.
Respectfully submitted,
PURCELL, KRUG & HALLER
BY
11, Jr.
.D.#29955
1719 North Front Street
Harrisburg, PA 17102
(717) 234-4178
EXHIBIT "A"
PENNSYLVANIA DEPARTMENT OF STATE
CORPORATION BUREAU
Fictitious Name
Entity Number Amendment, Withdrawal, Cancellation
(54 Pa.C.S.)
22X_ Amendment (§ 312)
_ Withdrawal (§ 313)
Cancellation (§ 313)
Name
John W. Purcell, Jr. Esq.
Address
1719 North Front Street
City State Zip Code
Harrisburg PA 17102
--Fee:--$70
----------------
Filed in the Department of State on
Document will be returned to the
name and address you enter to
the left.
G
MAY 18 2005
ecretary of the Commonwealth/a
In compliance with the requirements of 54 Pa.C.S. Ch.3 (relating to fictitious names), the undersigned entity or entities,
desiring to amend, withdraw or cancel from a fictitious name registration, hereby state(s) that:
1. The fictitious name is:
Underneath It All
2. The address of the principal place of business, including number and street, if any, is (the Department is
authorized to conform to the records of the Department):
829 Q State St Lemoyne PA 17043 Cumberland
Number and street city State Zip County
3. The last preceding filing with respect to this fictitious name was made in the Department on
10/9/84 (Date) at 8462-1761 (Roll and Film).
4. A brief statement of the character or nature of the business or other activity to be carried on under or through
the fictitious name is:
PA
Retail Sale of Women's Apparel
MAY 18 2005
DSCB:54-312/313-2
5. Check one or more of the follom,ing, as appropriate:
The fictitious name has been changed to:
X The principal place of business set forth in paragraph 2 has been changed to (PO Box alone not acceptable):
632 Devon Road Camp Hill PA 17011 Cumberland
Number and street city State Zip county
x The following party(ies) has (have) been added to the registration and their signature(s) appear(s) at the end of
this application.
Name Number and street city State Zip
KSB Enterprises, Inc. 632 Devon Road Camp Hill PA 17011
x The following party(ies) has (have) withdrawn from the business and their signature(s)'appear(s) at the end of
this application.
Name Number and street City State Zip
i
Patricia L. Vanyo 829 Q State St Lemoyne PA 17043
The fictitious name registration is cancelled.
6. Check boxes for Application for Amendment Only:
x This amendment, without reference to any other filing sets forth all information with respect to the fictitious
name which would be required in an original filing under the Fictitious Names Act.
X The applicant is familiar with the provisions of 54 Pa.C.S. § 332 (relating to effect of registration) and
understands that filing under the Fictitious Names Act does not create any exclusive or other right in the
fictitious name.
7. Optional-See Instruction F. This application has been executed by an agent heretofore designated for that
purpose in a prior filing in this registration.
DSCB:54-312,/313-3
IN TESTIMONY WHEREOF, the undersigned has (have) caused this Application for Amendment, Withdrawal or
Cancellation of/from Fictitious Name to be executed this
13th day of May 2005
Adding party(ies) signature(s) Withdrawing party(ies)?signature(s) All current party(ies) signature(s)
lu +er f F^ i ; •Z
Underneath It All
Name of
A
President
Title
Name of Entity
Signature
Title
Underneath It All
Name of Entity
Signature
Title
Underneath It All
EXHIBIT "B"
c .? o
E
- ! -;; 1
-77
--_i
John W. Purcell, Jr.
C ?3
I.D. 29955
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
(717) 234-4178
ipurcellopkh.com
KSB ENTERPRISES, INC. T/A : IN THE COURT OF COMMON PLEAS
UNDERNEATH IT ALL, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
VS.
STATE COLLEGE PREMIER RENTALS, : NO. 0 C"f L l € ( f -?r?
L.P..
Defendant : CIVIL ACTION - LAW
DECLARATORY JUDGMENT
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must
take action within twenty (20) days after this complaint and notice have been served. To defend against the
aforementioned claims, a written appearance stating your defenses and objections must be entered and filed in writing by
you, the defendant, or by an attorney. You are warned that if you fail to take action against these claims, the court may
proceed without you and a judgement for any money claimed in the complaint or for any other claim required by the
plaintiff may be entered against you by the court without further notice. You may lose money, property or other rights
important to you.
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 Bar Association
32 S. Bedford Street
Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas damandas expuastas en las paginas
siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar
una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las
demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y pAe entrar una
orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda.
Usted puede perder dinero o sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO EVEMEDIATAMENTE. SI NO TIENNE
ABOGAD O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN
PERSONA O LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA
ESCRIDA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA
LEGAL:
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108
KSB ENTERPRISES, INC. T/A : IN THE COURT OF COMMON PLEAS
UNDERNEATH IT ALL, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
VS.
STATE COLLEGE PREMIER RENTALS, : NO. 7 - y q q
L.P.,
Defendant : CIVIL ACTION - LAW
DECLARATORY JUDGMENT
COMPLAINT FOR DECLARATORY JUDGMENT
1. The Plaintiff is a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania trading under the registered factious name of Underneath It all
with an address of 632 Devon Road, Camp Hill, Cumberland County, Pennsylvania 17011.
2. The Defendant is a limited partnership organized and existing under the laws of the
Commonwealth of Pennsylvania with an address of P.O. Box 409, State College, Pennsylvania
16801, with a street address of 127 Sowers Street, State College, Centre County PA 16804.
3. On or about August 1, 2005, Plaintiff and Defendant entered into a Lease for the rental
of commercial premises located at the Hoover Plaza at 829 State Street, Lemoyne, Cumberland
County, Pennsylvania. A copy of the lease is attached hereto as Exhibit "A".
4. Pursuant to the Lease, Plaintiff leased 1323 square feet of space in a commercial
shopping center, then known as Hoovers Plaza, since renamed, which Plaintiff was limited to
using for the purpose of selling retail items (clothing and accessories) only. (See ¶ 3 of the lease)
5. At the time of the execution of the Lease, all or most of the other commercial
properties located in the shopping center were leased to other businesses, as restaurants and other
retail establishments requiring a flow of customers..
6. Sometime after the execution of the Lease, Defendant commenced major exterior
renovations to the property which discouraged other businesses from renting space, and
discouraged foot traffic from entering the shopping center..
7. Plaintiff believes and therefore avers that Defendant has conducted the management of
the overall property in such a way as to drive out or discourage other businesses from renting
within the shopping center, thereby diminishing customer traffic to the Plaintiff's premises.
8. Foot and vehicle traffic is an essential component of the Plaintiff's business, and
Plaintiff relies on such traffic to bring in a substantial portion of its revenue.
9. By failing to ensure sufficient rentals withing the shopping center, and by failing to
manage the property in such a way as to ensure customer traffic, Defendant has seriously
undermined the Plaintiffs source of revenue.
10. Since August 1, 2005, most of the businesses in the shopping center have either left
or gone out of business, due to the actions or omissions of the Defendant.
I 1. Plaintiff s business has decreased by approximately 50 percent, making it impossible
for it to meet its obligations under the Lease.
12. Implicit in the lease arrangement between the parties, Defendant has an obligation to
ensure that it does not obstruct or hinder a tenant's ability to do business or generate income.
13. Subsequent to the execution of the Lease, when the Plaintiff complained about the
loss of business, Defendant agreed that it would make all efforts to increase traffic flow through
the shopping center, by filling up vacant tenancies in the shopping center.
14. Despite such subsequent promises, vacancy in the shopping center has continued
to decrease, to the point where the shopping center is only approximately 10 to 15 percent
occupied.
15. Defendant's actions or omissions makes the Plaintiff's performance impossible
and/or impracticable, thereby voiding the Lease Agreement between the parties.
16. Plaintiff s business has been at this location for more than 20 years, and was able to
generate sufficient revenue to maintain its existence prior to the acquisition of ownership and
subsequent management by the Defendant.
17. The provisions of the Lease Agreement are unconscionable in that the Lease provides
numerous remedies to the Landlord, while providing no remedies to the Tenant.
18. The Lease contained a Confession of Judgment clause enabling the Defendant to
enter Judgment by Confession.
WHEREFORE, Plaintiff requests this Honorable Court to enter an Order:
A. Declaring the Lease between the parties null and void; and
B. Enjoining the Defendant from any attempt to enforce any of the provisions of the
Agreement; and
C. Directing such other and further relief as may be appropriate.
Respectfully submitted,
PURCELL, KRUG &
BY
777NNorth Purcell, Jr.
9
55
Front Street
rg, PA 17102
(717) 234-4178
EXHIBIT "A
LEE
DATE: August 1, 2005
"LANDLORD": STATE COLLEGE PREMIER RENTALS, L.P., with an address of
PO Box 409, State College, Pennsylva era 16804-0409
mheraY -6 . H, Pr
"TENANT": UndemeaEh It All c/o 4C ., with an address of
1:7011
"PREMISES": Store/Office # N coruisting of 1,323 square feet in the Shopping Center
known as Hoovcr's Plaza in Lemoyne, Pennsylvania, located at 829 State
Street. Lemoyne, Pemrsylvarnia 17043 (the "Shopping Center")
NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein,
and intending to be legally bound, Landlord and T=ant hereby agree as follows:
I . LEASE OF PREMISES; PARKING LOT; Landlord does hereby demiee and
lease to Tenant, and Tenant does hereby lease and take from Landlord, the Premises- Tenant, its
employes, agents and invitees are also granted the non-exclusive right, in common with
Landlord and the other tenants at the Shopping Center and their employees, agents and invitees,
to use the parking lot at the Shopping Center in confection with normal operation of Tenant's
business. Notwithstanding the foregoing, Landlord reserves the right to modify the parking tot
frow time to time as may be deemed desirable by Landlord
2. TERM : The tern of the Lease (the "Term") shill be five (5) years, commencing
on Novcmbcr 1, 2005 (the "Commcncen',east Date") and expiring without further act or notice on
October 31, 2010 (the "Termination DaLe"). As Uscd herchi, the term "Lease Year" shall refer to
a period of one year commencing on the Commencement Date or any annual anniversary thereof.
Tenant shall have the option (the "Renewal Option") to extend the Term two
times Cor- an additional five (5) years each (she "Renewal Term"), commencing on the day
immediately following the Termination Date. Tenant shall exercise the Renewal Option by
providing written nonce of such exercise to Landlord not less than six (6) months prior to the
Termination Date.
3. USE: The Premises shall be used by Tenant solely as a retail items (clothing &
accessories) establitihmcnt and for no otbar osc. The Tenant shall not occupy or use the Premises
or any part the_rcof, nor permit or suffer the snore to occupled or used for any purposes otlux than
herein limited, nor for any purpose deemed unlawflrl, disreputable, Hazardous or a nuisance.
4. RENT : The Tenant covenants and agrees to pay to Landlord annual base rent
("Base Rent") in the following amounts:
Mi:?l(i: W:,?lb
a. during the first Lease Year, $12,569, payable iii monthly installments of
$1,047.00 per month;
b. during the second Lease Year, ? 12,520, paynble in monthly installments of
$1,OG8.00 per month;
C. during the third Lease Year, $13,077, payable in monthly installments of
$1,090.00 per month ;
d. during the fourth Eerie Year, $13,339, payable in monthly installments of
$1,112.00 pcr month;
e. during the fifth Lease Year, $ 13,606, payable in monthly installments of
$1.134.00 per month.
Base Rent during each Lease Yc4r of the Terre or any Renewal Tetnn, if exercised, shall
be equal to One Hundred Two percent (1020 of the Base Rent applicable during the
irnmediately preceding Lease Year.
In addition to the Base Rent, Tenant shall pay Landlord as "Additional Rent" all
other payment,4, impositions, clu ges, costs, fees, reimbursements and all other sums of money as
shill become duc and payable by Tenant to Landlord under thi.. Lease, whe-thcr specifically stated
to be treated as Additional }tent or not. Unless specifically providal herein to the contrary, any
Additional Rent due shall be paid on the first day of each calendar month of the Terns
5. RENT; WREN DUE, WHERE PA.II3: All Base Rent and Additional Rant
payable by Tenant to Landlord under this Lease shall be deemed to be runt and shall be payable
and recoverable as rent in the manner herein provided, and Landlord shall have all rights set forth
herein against Tenant for default in any such paymeatt. Base Rent ,ihall be paid to Landlord in
advance, on the first day of each calendar month, during, the entire Term, without deduction or
set-off, in legal tender of the United States of America, at the address of Landlord as set forth
above, or to such outer person of entity or to such other address as Landlord may designate in
writing. Tenant's obligation to pay all rent due under this Leatie shall survive the expiration or
cat'lier termination of this Lease.
6. LATE PAYMENT CHARGE; INTEREST RATE ON DELINQUENCIES: if
Tenant shall fail to pay any rent within five (5) clays of when the same shall be due, Tenant shall
pay to Landlord a late payment charge of $50.00 for each occurrence, as Additional Rent,
intended to partially compensate Landlord for iu administrative costs. Tenant acknowledges that
such lnte fee is a reasonable estimate of such costs and does not constitute a penalty. In addition,
any amounts not paid when due shall bear interest at the greater of one and one half percent
(1.5%) per month and the maximum interest rate legally permitted, from the date such payment
was due unfit paid. Lt no event shall the interest rate hereunder exceed the interest rate legally
permitted.
04.7141,3 0/31a3i
7. UTILITIES: Tenant shall contract directly with serving utility companies for the
provision of all separately zoned and metered Tenant utilities. Tcnarn shall pay when due,
directly to such utility eomparties, all charges for such services and Landlord shall have no
liability for any interruption thereof. If not paid when duc, such charges shall he added to and
become payable as Additional Rent with the installment of rent next due.
8. COND'ITION OF PREMISES: Tenant accepts the Premises in "as is" condition
and agrees that Landlord has made no represe ntatiorts or warranties concerning the Shopping
Center or Premises, except as expressly set forth in this Lease_
9. TITLE AND QUIET ENJOYMENT: Landlord covenants and represents that
Landlord is the owner of the Premises herein leased and has the right and authority to enter into,
execute and deliver this Leatie; and does farther covenant that Tenant, on paying the rent and
performing the conditions and covenants herein conatiacd, shall and may peaceably and quietly
have. hold and enjoy the Premises during the Term.
10. ALTERATIONS; IMPROVEMENTS: No alterations, additions, or
Improvements shall be made, and no climate regulating, air conditioning, cooling, heating or
sprinkler systems, plumbing systems, television orr radio antennas, heavy equipment, apparalm
and fixtures, shrill be installed in or anaclied to the Premises, without the written consent of
Landlord. Unless otherwise indicated by Landlord, all such alterations, additions or
improvements, whirr made, instalW in or attached to the Premises, shall belong to and become
the property of Landlord and shall be surrendered with the Premises and s5 part thereof upon the
expiration or carlicr termination of this Lease, without hindrance, molestation or injury. If
Landlord shall require Tenant to remove any such slip-orations, additions or improvcmcrtts at the
expiration or earlier terraiuation of the Uase, Tenant shall do so at Tenant's expense, such
obligation to survive expiration or earlier termirintion of the Lease..
11. SIGNS: Except for signs which are located wholly within the interior of the
premises, no signs shall be placed, erected, maintainwd ar painted on the Premises or any place in
the Shopping Center wichour the prior written consent of Landlord. All signs installed by or at
the request of Tenant shall be maintained by Tenam in good condition during the Term, and
Tenant shall remove all signs at the termination of this Lease. and .ball repair and restore any
damage caused by the installation or removal theret)f. In the event Landlord elects to impose a
uniform sign package on all_ or a portion of the Shopping Center, Tenant shall pay to Landlord
the cost of replacing its existing Tenatrt signage with sispagc consistent with any future Landlord
imposed specifications. Should Tenant fad to perform any of its' obligations under this
Section 11, Landlord tnay perform such obligations on iaehrdf of Tenant, and the cost end
expense thereof, together with interest from the date such costs and expenses were incurred by
Landlord, shall be paid by Tenant to Landlord as Additional Relit within ten (10) days after
delivery of a statement from Landlord identifying the amount duc.
12. MAINTENANCE AND CARE: JANITORIAL SERVICES: Tenant shall, at
Tenant's own cost and expense, tyke good care of the Premises and make all repairs and
replacements, including painting and decorating, ncccssary to maintain the Premises in good
condition and state of repair. At the expiration or earlier termination of ts» Lease, Tenant shall
W7ru_OCinP
surrender and deliver up the Premises in good order and condition, reasonable wear and tear and
damage by the clernenti not resulting fi•orn neglect or fault of Tenant excepted. Ter>+vr[ shall riot
encumber na obstruct the sidewalks, driveways, yards, entuanees, hallways and stairs adjaccat to
the Premises, and shall keep aad maintain the suns in a clean eoadilion, free from debri,a, trash,
refuse, snow and ice.
Tcnant sliall, at Tenant's own cost mid expense, maintain, repair and, if necescnry,
replace all systems servicing the Premises, including, but not liinited to, all im.erior plumbing, stir
conditioning, heating and electrical systems, and shall be responsible for the maintenance and
repair of all other interior ponions of the Premises. Al ptrrrrrbing and all toilet facilities shall be
kept in constant working order and in a clean and sanitary condition. Except for repairs made
necessary by Tenant, its agcros, employees, guests, licensees, invitees, subtenants, assignees, or
successors (for which Tenant shall be responsible), Lrndlord shall be responsible for structural
repairs to, and exterior maim tenance of, the building containing the Premises.
All interior janitorial services within the Premises of any nature whatsoever are to
be performed by Tenant at Tenant's expense
13. GLASS, DAMAGE., REPAIRS: in cue of the destruction of or any damage to
the glass in the Premises from any cause whatsoever, or the destruction of or damage of my lcind
whatsoever to the Premises or any other part of the Shopping Center caused by the carelessness,
negligence or improper conduct on the part of Tenant or'renam's agents, employees, guests,
licensees, invitees, subtenants, assignees, or successors, Tenant,,J a l promptly repair the said
damage or replace or m%lore any destroyed parts of the Prcrrtises or Shopping Ccntcr, as the case
may be_ at Tenant's own cost and expcntie.
14. COMPLUNCE WITH LAWS: Tetiant shall, at Tenant's cost and expense,
promptly comply with all federal, state and local laws, ordinances, rules, regulations.
?eduiremenrs and dircctivcs ("Laws") applicable to and affecting the Premises or their, including,
without limitation, all Laws concerning the presence, use and disposal of hazardous substanccs,
and shall promptly comply with all orders. regulations, requirements and directives of the Board
of Firc Underwriters or similar authority and of any insurance companies which have issued or
about to iNsue policies of unsurance covering the Premises or i[s contents, for the prevention of
fire or other casualty, damage or injury.
15. INSPECTION AND REPAIR: Tenant agrees that Landlord and Landlord's agents,
employees or order represenratives shall have the right to enter into and upon the Premises or any
part thereof, at all reasonable hours, for dre purpose of examining the same or making such
repairs or alterations therein as may be necessary for the safety and preservation thereof. This
Section shall not be deemed to he a covenant by Landlord nor be construed to create sn
obligation on the part of Landlord to make such irv-pection or repairs.
16. SERVICES: The following services have been installed within the Premises: (i)
electrical Service; (ii) water service; and (iii) sewer connection. Landlord makes no warranty or
representation concerning the condiriott of such services or the adequacy of Elie same to serve
Tenant's use of the Premises.
pc7w: art uns
17. INSURANCE : Tenant shalt, at Tenant's sole cos, and expense, carry at all times
during aN-- Term comprehensive general liability insurance with respect to Tenant'A use of the
Premises under a policy or policies which shsli have a combined single limit for any one (1)
occurrence of not less than Two Million Dollars ($2,000,000) for personal injury, bodily injury.
death and damage or injury to or destruction of property occurring upon, in or about the Premises
and for broad form conUactual liability assumed under this Lease. All such policies shall be
provided by inaurcTS reasonably acceptablr to Landlord and authorized to do business in the
Commonwealth of Pennsylvania, shall name Landlord as additional insured and shall provide
that they may not be cancclled without thirty (30) days prior notice to Landlord. Prior to the
Commencement Date, and thereafter not less than d1irry (30) days prior to the expiration of the
insurance policies theretofore furnished. Tenant shall provide Landlord with certificates of
insurance ur a form satisfactory to Landlord rvidenci,lg the existence and/or renewal of such
policies. Tenant shall also maintain, all risk fire and extended coverage an a repair and
mplacerrient basis on all improvements to the Premises, and on Tenant's trade fixtures,
furnishings, equipment and personality located at the Premises. Tenant shall also maintain such
other insurance in effect as may be reasonably required by Landlord from time to dine.
18. INCREASE- OF SNSURANCE- RATES: If by reason of the use to which the
Prcrriises are put by Tenant or character of or the manner in which Tenant's business is carried
on, Landlord's insurance ratr_s for fire and other ha_rards shall be greater than normally charged,
such additional payment slWl be the obligation of T+mam, and Tenant shall, upon demand, pay to
Landlord, as Additional Rent, the additional premium for such increased insurance.
19_ INDEMNIFICATION: Tenant shall indeimnify and hold harmless Landlord from
and against any and all damages, liabilities, claims, losxes, payments, expenses, judgments and
costs (including attorney's fees) for damage to property or injuries to persons occasioned wholly
or in part by or resulting from any act or omission of Tenant or Tenant's agents, employees,
guests, licensees, invitees, subtenants, assignees or succcssors, or arising by reason of a breach by
Tenant of any obligation of Tenmit under this Lease; or anributable in whole or in part to
Tenant's use of the Premises or the conduct of Tenant's business therein.
20. FIRE AND OTHER CASUALTY: in case of fire or other casualty, Tenant shall
give itnmcdiatr- notice to Landlord. If the Prernises shall be partially damaged by fire, the
eloments or ocher casualty, Landlord shall repair the sane. as ,pcedily as practical, but Tenant's
obligation to pay the rent hereunder shall not cease, If, in the opinion of Landlord, the Premises
are co extensively and substantially damaged as to rendiz [fern untenanrable, then the rent shall
cease until such time as the Premises shall be made ten;rntable by Landlord. However, if, in the
opinion of Landlord, the Premises are totally destroyed or so extensively and substantially
damaged as to require practically a rebuilding thereof, th.cn the rent shall be paid up to the time of
such destruction and this Lease shall then come to an end. In no even(. however, shall the
provisions of this Section become effective or be applicable if the fire or other caawlty and
damage shall be the result of the carelessness, negligence or improper conduct of Tenant or
Tenant's agents, employees, guests, licensee,, invitees, subtenw)ts, assignees or succrssors. In
such case, the performance of all covenants, coaditiom and terms, hereof on Tenant's part to be
performed shall conti.ntte wid Tenant shall be liable to Landlord for the damage and loss suffered
.1:710.3 ail IRLS
by Landlord. If Tenant, shall have been insured against any of the iislcs herein Wnred, then the
" proceeds of such inst.trance shall be paid over to Landlord to the extent of Landlord's costs and
expensc6 to make the repairs hereunder, and such instv:ance: carricrs shall have no recourcc
against Landlord for reimburscrnent.
21. RELEASE AND WAIVER OF SUBROGATION: Tenant rcleascs Landlord and
Lvidlord's agents, employees and other re-prescntatives from 211y and all liabiliry or responsibility
to Tenant or anyone claiming through or under Tenant: by way of subrogation or otherwise for
any loss or dunage to property of Tenant covered by insunince required to be rrl"tained under
dtis Lcasc: (whether or not actaally maintained.) The,remnt shall obtain from TMIUt's insurance
carriers and will deliver co Landlord waivers of the subrogation rigltrs which such insurer4 might
otherwise have under such policies.
22. CONDEMNATION: EMINENT DOMAW: If the land and Premises leased
herein, or of which the Premises are a part, or any portion thereof, -hauld be taken trader the
eminent domain or condemnation proccxdiug,_ or if suit or other action shall be initiated for the
taking or condemnation thereof, or if in lieu of any formal condernnation proceedings or action,
Landlord shall grant sn option to purchase acid or shall cell and convey the premise.; or any
portion thereof, to the govenimCntal or other' public authority, agency, body or public utility,
seeking to take said lmd and Premises or any porticin thereof, dun this Lease, at the option of
Landlord, shall terminate, and Elie term hereof shall end a:s of such date as Landlord shall fix by
notice in writing; rind Tenant shall have no claim or fright to claim or be entitlul to any portion of
any amount which may be awarded as damages or paid as the result of such conde?nnsttion
proceedings or paid as the purchase price for such apdait. sale or conveyance in Geu of formal
condcrrrnation proceedings; and all rights of Tenant w dstnagr_s, if any, are hereby assigned to
Landlord. The Tenant agrees to execute and deliver any inctn?ments, at the cxpenae of Landlord,
as may be deemed necessity or required to expedite condcrnnatian proceedings or to effectuate a
proper transfer of title to such governmental or other public authority, agency, body or public
utility seeking to talce or acquire the said lands and }'remises or any portion thereof. The Tenant
covenants and agrees to vacate the said Prernisej, remove all Tenant's personal property
therefrom and deliver up peaceable pvssrssion thereof to Landlord or such outer party dcsignared
by Landlord in the aforementioned notice. Flilurz Uy Tenant to comply with clay provisions in
this clause shall subject Tenant to such costs, expenses, damages and losses as Landlord May
incur by reason of Teaant's breach liereof.
23. MECHANICS' LIENS: Tenant shall provide Landlord with a copy of a Waiver of
Mcvtvucs Liens validly filed in Cumberland County prior to undertaking aQy consituetiott
authorized by Landlord. Il'any mechanics' or ot'ner Iicn-x shall be created or fitd against the
Premises by reason of labor performed or materials funtished for Tenant in the erection,
construction, completion, alteration, repair or addu.ion to any building or improvement, Tenant
shall witltit fifteen days therenfner, ar Tenant's owrl cost: and expense, cause such lien or liens to
be satisfied and discharged or record. Failure so To do shall entitle Landlord to exercise such
remedies as are provided herein in the case of any default of this Lease, in addirion to sack as are
pennitted by law.
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24. ESTOPPEL CERTIFICATE: Tenant shall, at ally time and from tittle to time, at
the request of Landlord, upon ten (10) business days notice, execute Ind deliver to Landlord a
-? certificate in the form of Exhibit "A" attached hereto or any other reasonable form supplied by
Landlord, it being intended dial any such certificate delivered pursuant hereto may be relied upon
by others with whom Landlord may be dealing. Tenant hereby appoints Landlord as Tenant's
attorney-nl-fact to execute any such cetrtificates in the event Tenant does not execute and retum
such certificates within the thistle period set forth above.
25. MORTGAGE PRIORITY; ATTORNMEN-r: This Lease shall be subject and
subordinate to any mortgage, and all renewals. modificatians, consolidations, replwement" and
extensions thereof, which may now or hereafter be placed upon [he Premises or any part thereof,
without requirement of futther documentation. Notwidhsmoding the foregoing. Tenant agrees to
execute any instruments-, without cost, which may be deemed necessary or desirable, to further
effect the subordination of this Lease to any such mortgage or mortgages. A refusal by Tenant to
execute such instruments shall entitle Landlord to the option of cancelling this Lease, and the
Term lrercof is hereby expressly limited accordingly. If any person shall succred to all or port of
Landlord's interest in tljc Premise, whether by purchase, fcucclosure, deed in lieu of foreclosure
or otherwise, and if so requested by such successor in interest, Tenant shall atcom to such
successor and shall execute any instruments, without cost,, which may be deemed necessary or
desirable to confirm such artomment.
26. NOTICES: All notices required under the terms of this Lease shall be givens and
shall be dcrmed complete by mailing such notices by certified or registered mail, return receipt
requested or by reputable rive-might delivery service, to the address of the parties ac shown at ilYe
mead of this Lease, or to such other address as maybe desigtiated in writing, which notice of
change of address shall be given in the same rnwui .
27. ASSIGNMENT: The Tenant shall not, without the written consent of Landlord,
assign, mortgage or hypothecate this Lease, nor sublease the Prcmises or any part thereof. If
Tenant requests Laaidloid's consent to an assignment or sublease of all or pate of the Premises,
Landlord shall have the right to recapture the Premises. If Landlcud consents to an assignment of
the Lease or a sublease of all or part of the Premises, one. half of any profit or additional
consideration or rent in excess of the rent payable by Tenant hereunder hail be paid by Tenalit to
Landlord as Additional Rent when received by Terutnt. In the event of any assigrunent or
subleasing of the Ptnhniscs, Tenant shall ne;nain primarily liable tinder this Lease. Landlord°i
consent to ;my assignment or subleasing of the Premises shall not be deemed to constitute
consent to any subsequent assignment or subleasin f;.
28. SALE OF PROPERTY: In the event of a `alc of the property, this Lease shall be
assigned to the new owner and remain in full force and effect. The assigning Landlord shall not
be liable for any obligations under the Lease from :md after the date of such assignment.
29. DEFAULT: Any other provisions in this; Lease notwithstanding, it shall be an
event of default ("Event of Default") under this Lve--c if: (i) Tenant fails to pay any installment of
Base Rent, Additional Rcnt or other sum payable by Tcnant (hereunder when due, or (ii) Tenant
fails to observe or perform any outer covenant or agreement of Tenant herein contained and Bach
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failure continues after written notice given by or oa bcliaY of Landlord to Tenant for more than
fifteen (15) days, or (iii) Tenant uses or occupies the Premises other than is permitted hereunder,
or (iv) Tenant <<ssigils or sublets, or purports to assign or sublet, the Premises or any part thereof
other than in the manner and upon the conditions set forth herein, or (v) Tenant abandons or
vacates the Premises or, without Landlord's prior written consent. Tenant removes or attempts to
remove or manifests an intention to remove any or all of Tenant's property from the Premises
other titan in the ordinary and usual course of Tenant's busintss, or (vi) Tenant files a petition
con-imencing a voluntary case, or has filed agairut it a petition commencing tin involuntary caw,
tinder the Federal Bankruptcy Code (Title 11 of the United St: tes Code), as now or hereafter its
effect, or under any similar law, or files or has filed agaiwa it a petition or answer in bankruptcy
or Cor rcorgarnizaiion or for an arrangement pursuant w any state bankruptcy law or any similar
state law, and, in the case of any such involuntary action, such action ,hall nflt be dismissed,
discharged or denied within sixty (60) days after the filing; thereof, or Tenant consents or
acquiesces in the filing thereof, or (vii) if Tenant is a banking organization, Tenant files an
application for protection, voluntary liquidation or dissolution applicable to banking
organiaationy, or (viii) a custodian, receiver, trustee or liquidator of Tenant or of all or
Substantially all of Tenant's property or of the Prerni!ces shall be appointed in any proceedings
brought by or against Tenant and., in the latter case, such entrry shall not be discharged within
sixty (60) days after such appoinmncnt or Tenant consent; to or acquiesces in such appointment,
or (ix) Tenanr shall gcncrally not pay Tenant's debts as such debts become due, or shall make an
assignment for the betteftt of creditors, or shall admit in writing it, inability to pay its debts
generally as they become due, or (x) any of the foregoing, occurs as to tiny guarantor or surety of
Tcaant's performw)ce tender thi, Lease, or such guarantor or surety defaults on any provision
under its guaranty or suretyship agrcerrunt The notice and grace period provision in clause (ii)
above shall have no application to the Events of Default refereed to in clauses (iii) ttrrough (ix)
above or, to the exteut applicable, (x).
30. LANDLORD'S REMEDEES: Upon the eccurrenee of any Event of Default,
Landlord at any time thereafter may at its option exercise any one or more of the following
remedies:
a. Landlord may tcrminate this Lease, by written notice to Tenant, without
any right by Tertalnt to t:einstat.c its rights by payment of rent due or other perfor-marnce of the
terms and conditions hereof. Upon such termination Tenant shall immediately surrender
possession of the Premises to Landlord, and Landlord shall itrtrrrediately become entitled to
receive from Tenant an amount equal to the difference bctwc;err the aggregate of all Base Rcnl
and Additional Rent reserved under this Lr-=, for the balance of the Term, and the fair relntal
value of the Premises for char pcz-iod, determined ati of the date of such termination.
b. Landlord may, 21 Landlord's ontian, with or without terminating this
Leasc, enter upon the Premises and remove any and all persons therefrom and take and retain
possession thereof by any means available to Landlord, including summary dispossess
proceedings. If Landlord elecu to terminate Tenant's right to possession only, without
tcrnniaating the Lease, Landlord may, at Landlord', option, enter into the Ptrrrtisec, remove
Tenant's signs and other evidences of tenancy, and take: and bold possession thereof as
hereinabove provided, without such entry and possession terminating the Lease or releasing
M-11 I M2 4P tilts
Tenant, in wholc or in part, from Tenant's obligations to pay the rent hereunder for the full term
or for any other of its obligation under this Lease. Landlord may, but will not be under
obligation to, relet all or any part of the Premises in any manner, for any term, for such rent and
upon terms satisfactory to Landlord and may decorate or make any repairs, changes, alterations
or additions in or to the Premises that may be necessary or convenient. If Landlord does not relet
the Prerises. Tenant will pay Landlord on demand all amounts duc from Tenant to Landlord
under this Lease for the remainder of the Term. It the Premises are relet, Tenant shall pay any
excess of the rent over the actual proceeds of such relc,ttin€;, net of all expenses, including repairs
or construction costs and leasing commissions. Laridlmd wid Tenant agree that L..andlord shall
have no obligation to mitigate Landlord's damages under this Lease. If the Premises arc at the
time of any Event of Default sublet or leasul by Tenant to others, Landlord may, as Tenant's
agent, collect rents due from any subtenant or other ttriant and apply such rents to the rent and
other amounts due hereunder without in any way affecting, Tenant's obligation to Landlord
hereunder. Such agency, being given for security, is hereby declared to be irrevocable.
C Landlord may declare Base Rent arid all items of Additional Rent (the
amount thereof to be based on historical amounts anti L adlord's estimates for future amounts)
for the entire balance of the then current Term immediately duc and payable. together with all
oilier charges, payments, costs, and expenses payable by Tenant as though such arnounts were
payable itt advance on the date the Event of Default occurred.
d_ Landlord may rc-move all persons and property from the Premises, and
store such property in a public warehouse or elsewhere at the cost of and for the account of
Tcnont, without service of notice or resort to legal pro=s (All of which Tenant expressly waives)
and without being deemed guilty of trespass or becoming liable for my loss or damage which
may bC occasioned thereby.
C. No right or remedy herein conferred upon or reser Cd LO Landlord is
intended to be exclusive of any other right or remedy, and every right and remedy shall be
cumulative and in addition to any other right or remedy given hereunder or now or hereafter
existing at law or equity. Without limitation of the foregoing. Landlord shall be entitled to
injunctive relief in cage of the violation, or anempW or threatened violation, of any covenam,
agreement, condition or provision of this L..cae, or to a decree compelling performance of any
covenant, agreamcnt, condition or provision of this Lease, or to any other remedy allowed by lava
or equity.
f- if proceedings shall be commuted by Landlord to recover possession of
the Premises, either at the elid of the Term or upon the earlier termination of this Lease, or for
non-payment of rent or any other reason, Tr- ant specifically waives the right to any notices now
or hereafter required by law, and agrees that rm notices other than those set forth in this Uase
shell be required.
g. No expiration or mirnination of this Term by opcrariou of law or otherwise
(except as expressly provided herein), -and no reprissession of the Premises or any part thereof
shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such
941740.: N!I l A13
expiration, termination ai repossession, and Landlord may, at its option, sue for and collect nil
rent and other charges due hereunder at any three as and when such charges accrue.
h. Tenant hereby expressly waives any and all rights of redemption granted
by or wider any prescut or future law in the event this Lease is terminated, or in the event of
Landlord obtaining possession of the Premises, or in the event Tenant is evicted or dispossessed
for any cause, by reason of violation by Tenant of any of the provisions of this Lease.
i. The receipt by Landlord of any rent or other sum payable hereunder, with
knowledge of the breach of any covenwi or agrecmeszt (oihcr tlian the prior failt?re to pay such
rent or other sum) shall not constitute a waiver or cure of such breach or prevent Landlord from
exercising any of its rights or remedics hereunder an account of Temm's breach.
j. In the event that Larullord cou?rncnces suit for the repossession of the
Premises, for the recovery of rent or any other amount due under the provisions of this Lease, or
because of the breach of any other coven=t herein contained on the part of Tenant to be kept or
performed, and a breach shall be establisbed, Tenant shall pay to Landlord all expenses inctnred
in connection therewith, including reasonable artorneys' fees.
31. CONFESSION OF JUDGMENTS-
u. CONFESSION Or JUDGMENT FOR RENT. TENANT
IRIZEM)CABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY AND
CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND
CONFESS JUDGMCNT AGAINST TENANT FOR !'UCH RENT AND OTHER SUNLS
AS ARE DUE ANDIOR MAY BECOME DUE UNDER TMS LEASE, WITHOUT STAY
OF EXECUTION AND WITH AN ATTORNEY'S COLLECTION ? + OF DIVE
PERCENT.(59' ) OF THE AMOUNT DUE (BUT NOT LESS THAN $1,000.00),'WMCH
IS REASONABLE AS AN A 1TORNEY'S FEE. TO THE EXTENT PERMITTED BY
LAW, TENANT RELEASES ALL ERRORS IN SUCK PROCEEDINGS. Ir A
VERIFIED COPY Or THIS LEASE IS FILED, IT ;HALL NOT BE NECESSARY TO
FILE THE ORIGINAL LEASE. THE AU ICHORIT'Y AND POWER TO APPEAR FOR
AND CONFESS JUDGMENT AGAINST TENANT SHALL NOT BE EXHAUSTED BY
THE INITIAL EXERCISE THEREOF AND MAY BF- CONFESSED AS OFTEN AS ANY
EVENT OF DEFAULT OCCURS. SUCH AU`t'HOIUTY MAY BE EXERCISED
DURING OR AFTER THE EXPIRA.110N OF 'THE: LEASE TERM AND10R DURING
OR AFTER THE EXPIRATION OF ANY EXTENDED OR RENEWAL TERM.
b. CONFESSION OF JtMGlV[l Mr FOR POSSESSION. TENANT
IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY AND
CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND
CON F, E SS JUDGMENT AGAINST TENANT FOR POSSESSION OF THE PREMISES,
WITHOUT STAY OF EXECUTION. TO THE EXTENT PERMITTED BY LAW,
TENANT RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IF A VERIFIED
COPY OF TATS LEASE IS FILED, IT SHALL NOT BE NECESSARY TO FILE THE
ORIGINAL LEASE. THE AUTHORITY AND POWER TO APPEAR FOR AND
Rr] iu._ Mn inn 10
CONFESS "GMENT AGAINST TENANT SHALL NOT BE EXHAUSTED BY THE
INITIAL EXERCISE M, REOF AND MAY BE C O FE SSED AS OFFS, N AS ANY
EVENT OF DEFAULT OCCURS. SUCH AUTHORITY MAY BE EXERCISED
DURING OR. AFTER THE EXPIRATION OF THE Tr . AND/OR DURING OR
AFTER THE, EXPIRATION OF ANY EXTENDED Olt RENEWAL TERM" IF SUCH
PROCEEDING IS TERNUNATED AND POSSESSION OF THE PREMISES REMAINS
IN OR IS RESTORED TO TENANT, LANDLORD SHALL HAVE TIM RIGHT FOR
THE SAME EVENT OF DEFAULT AND UPON ANY SUBSEQUENT EVENT OR
EVENTS OF DEFAULT, OR UPON THE TERMINATION OF THIS LEASE UNDER
ANY OF THE TERMS OF THIS LEASE, TO RILING ONE OR MORE FURTHER
ACTION OR ACTIONS TO RECOVER POSSESSION OF THE PREMISES AND
CONFESS f(JDGNtENT FOR THE RECOVERY OF POSSESSION OF THE PREMISES
AS HEREIn'N'ABOVE PROVIDED.
C. REPRESENTATIONS. TENANT HEREBY REPRESENTS THAT
(A) '.TENANT IS KNOWLEDGEABLE IN BUSU&SS MATTERS, (B) THIS LEASE IS
FOR BUSINESS OR COMMERCIAL PURPOSES ONLY AND NOT FOR PERSONAL.
OR RESIDENTIAL PURPOSES, AND (C) TEKANT HAS FULLY REVIEWED THE
AFORESAID WARRANTS OF ATTORNEY TO CONFESS JUDGMENT WITH ITS
OWN COUNSEL.
d. WAIVFR OF RIGHTS. SUBSECTIONS 24.6.1 AND 24"6.2 ABOVE
SET FORTIS WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST
TENANT. IN GRANTING TIM, SE WARRANTS Ole ATTORNEY TO CONFESS
JUDGMENTS AGAINST TENANT, TENANT T 11ERIEDY KNOWINGLY,
INTENTIONALLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES ANY AND
ALL RIGHTS TENANT HAS OF, MAY HAVE 'r0 PRIOR NOTICES AND AN
OPPORTUNITY FOR HEARING UNDER THE RESPECTrVE CONSTITUTIONS AND
LAWS OF THE UNITED STATES AND THE COMMONWEALTH O
PENNSYLVANIA.
Underneath It All ("TENANT")
B.
Print N
Title:
32. CURE BY LANDLORD: If Tenant shall tail or itfase to comply with and
perform any conditions and covenants of the within Lease, Landlord may, if Landlord so elects,
carry out and perform such conditionus and covenants, ar the cost and expense of Tenant and the
sald cost and expense shall be considered Additional R--nt_ Such Additional Rent shall be
payable on demmd or, at the option of Landlord, shall be added to the installment of Buse Rent
due immediately thereafter. Landlord's rights set forth in this Section shall be iii addition to such
other reinedics as Landlord may have tinder, this Lease by reason of Tenant's breach of the
covenant. and conditions in this Lease contained.
dql I K) 2 ,r_ ims 1 I
33. REMOVAL OF TENANT'S PROPERTY: Any equipment, fixtures, goods or
other property of Tenant not removed by Tenant upon the termination of this Lease, or upon any
gLatting, vacating or abandonment of the Premises by Tenant, or upon Tenant's eviction, shall be
considered abandoned and Landlord shall h',ve the right, without any notice to Tenant, to sell or
otherwise dispose of the same, at the eazperoe of Tenant, and shall not be accountable to Tenant
for any part of the proceeds of such sale, if any. Landlord's rights set fm1h in this Section ;hall
be in addition to such other remedies as Landlord may have under this Lease by reason of
Tenant's breach of the covenants and conditions in this Lease contained.
34. NON-WANVER BY LANDLORD: The various rights, remedies, options and
elections of Landlord, expressed herein arc cumulative, and the failure of Landlord to enforce
strict perfoLmarux by Tenant of any of the conditions and covenants of this Lease or to exercise
any elections or option, or to reaort or have.reWursc to any remedy herein conferred or the
acceptance by Utr,dlord of any installment of rent afar any breach by Tenant, in any one or more
blstances, shall not be c:onsarucd or deemed to be a waives of a relatquishmem for the fitturc by
Landlord of any such conditions and covenants, options, elections Or remedies, but the same shall
continue in full force wnd effect.
35. LIABILITY OF LANDLORD: Tenant shall look solely to the Shopping Conter
and the revs derived thcrcfrom for enforcement of any obligation hereunder or by law assvrned
or enforceable against Landlord, and no other propetty or assets of Landlord shall be subject to
levy, cxecution or other enforce mmt proceeding for the satisfaction of Tenant's re=dies or with
respect to this Lease. Landlord shall not be liable for any damage or injury which may be
Sustained by Tenant or nny other person, ax a coaseolumc a of the failure, breakage, lcalage or
ob9truct?ou of the water, plumbing, steam, sewer, waste or soil pipes, roof draitls, leaders.
gutters, valleys, down spouts or the likc: or of the electrical, gas power, conveyer, refrigeration,
sprinkler, air-conditioning or heating systems, elevators or hoisting equipmcnt; or by reason of
the elements.; or resulting from the carelessness, negligence or improper conduct on the part of
any other Tmant or of Landlord (except for intentional acts of Landlord) or Landlord's invitee.5,
subtenants, assign=s or successors; or attributable to arty intarfcrence wiith, intemaption of or
failure, beyond the control of Landlord, of any services to be lwnithcd or control of Landlord, of
any services to he furnished or supplied by Landlord.
36. NON-PERFORMANCE Of LANDLORD: This Lease and the obligation of
Tenant to pay the rent hereunder and to comply with thc. covenants and conditions hereof shall
not be affected, curtailed, impaired or excused, nor shall Landlord be ltsble for any cost or
damages incurred by Tenant, as a result of Landlord's failura to supply any tiervice or material
called for herein by reason of any ntle, order, regulation or preemption by any governmental
entity, authority, department, agency or subdivision; or during any period of repairti or alterations
at the Shopping Center-, or by rcasotn of negotiations for the adjusrmenr of any firs or other
casualty loss; or because of strikes or other labor trouble; or for any other cause beyond the
reasonable control of Landlord.
37. RULES AND REGULATIONS: Landlord expressly reserves the right now and in
the futurc to promulgate reasonable rules and regulations relatbts to the use of the Premises and
M?':'1IIG: ??: SIP! ?'
all common areas of the Shopping Center, which rules and regulationG shall be deemed a pat of
" this Lease and breach of which shall entitle Landlord to exercise the remedies set forth in this
Lease or otherwise available to Landlord at law or in equity.
38. LANDLORD'S LIEN: Ll addition to the statutory Landlord's lien, Tenant hereby
gronts w Landlord a security interest to secarc payment of all rent or other sums of money due
from Tenant, and to secure paytncstt of any damage or loss which Landlord may suffer by reason
of the breach by Tenant of any covenant, agreemetu, or condition contained Herein, upon all
goods, wares, fixtures, furniturc, improvements and other personal property of Tcaiant presently
or hereafter situated on the Premises. Such property shall not be removed Flom the Premises
without the consent of LnOord until all arrearages in rent as well as any other sums of money
due Landlord hereunder shall frost hsve been paid. and all the covenants, agreements, and
conditions hereof have betii fulfilled and performed by Truant. In addition to any other
remedies provided herein, upon an event. of default, Landlord may enter the Premises and Lake
possession of any and all goods, wares, equipment, fixtures, furniture, improvements and other
personal propcrry of Tenant situated upon the Premises widiout liability for trespass or
conversion. Landlord may sell the same at a public or private sale, wide or without having such
property ar the sale. TENArIT HEREBY WAVa-S ANY RIGHT TO NOTICE AND
HEARING PRIOR TO THE (LANDLORD'S E, XERCI:SE OF ITS RIGHT Or DISTRESS,
EITI- ER PURSUANT TO 68 PA.C.S.A. 5250.302 OR OTHERWISE. At such sale,
Landlord or its assigns may purchase the property unless s;uch purchase is otheTwi se prohibited
by law. Ualcss otherwise provided by law, the requirement of reasonable notice shall be mrt if
vuch notice is given to Tenant at the Premises ac least five; (5) days prior to tlzc time of the sale.
The proceeds of such disposition shall be applied as a credit against the indebtedness secured by
the security interest granted in rhis paragraph, plus all expenses connected with the taking of
possession and sale of the property, including a reasatiarbre artorney's rec. Any surplus shall be
paid to Tenant and Tenant shall pay any deficiencies upon derrinnd. Tenant he-reby authorizes
Landlord to file a financing statement in a manner sufficient to perfect the security interest of
Landlord in the aforementioned property ;std the proceeds thereof.
39. HOLDING OVER: If Tenant shall contirtue to occupy the Premises after
expiration or sooner termination of this Lease, Tenant shalt pay, ac liquidated damages, for each
month of continued occupancy an amount equal to two times the monthly renr being paid by
Tenant hereunder for the month immediately prior in such holdover. Acceptance of such rent by
Landlord from Tenant after expiraEon or termination of this Lease shall not serve to rrinstite or
extend this Lease or affect any prior notice, given by Landlord to Tenant.
40. RIGHT TO EXMB IT: 7 e at agyecs to permit Landlord and Landlord's agents,
employees or other representatives to show the Premises to persons wishing to rent or purchase
die same, and Tenant agrees that during the final six (6) months of the Term, Landlord or
Landlord's agents, employees or other representatives shall have the right to place notices on the
front of clue Premises or any part thereof, offering rho Premises for rent or for sale.
41. RENTAL TAX: Tenanr shall pay I indlord upon demand as Additional Rent the
amount of any rental excise, transaction, sales, businesci or privilege tax (except income tax)
lip:7M] WMIMS 13
ottributed to or measured by rental which is now or subsequently imposed upon Undlord by any
government or unit thereof.
42. TENANT'S PROPORTIONATE SHARE: As used its, this Lease, the term
"Tenant's Proportionate Share" shall refer to B fraction, the numerator of which is the ground
floor square footage of the Premises and the denominator of which is the ground floor square
footage of all rentable buildings in the Shopping Center, which shall be subject to adjustment for
increases and decreases in the square rootage of the Premises and the rentable buildings in the
Shopping Center. Tenant's Proportionate Shane at the commencement of this Luse i? two and
sixth tenths of one percent, rounded to nearest tenth of one perczttt (16%).
43. TAXM AND ASSESS14ENTS: Upon ihr Tenant's exercise of any Renewal
Term, Tenant shall pay to Landlord in each calmdar year, Tenant's Proporrionam Shat-e of all
Taxes (as defined hereafter). As used herein, the tents, "T&xr:s" shall mean all taxes and
assessments, levied or assessed against the Shopping Cerazy, including general real property taxes
and assessments for public improvements. Such amowits shall be paid by Tenant as Additional
Rent in monthly installments in advance, based upon Larnilord's egtimate of total Taxes for the
calendar year. Following the end of each calendar year, Landlord shall provide TL?_nant with a
statement setting forth the acrual amount of Taxes for the calendar year and the Taxes, if any, to
he paid by Tenant to Landlord for such calendar year, which amount shall be due within thirty
(30) days after receipt by Tenant of such statements. In the event that the actual amount of Taxes
for a calendar year arc Iess than total tax payments by Tenant for such period, then such excess
shill be applied to Tenant's next succeeding Tax Payment.. During the initial Term of the Lease,
Tenant shall pay to Landlord in each calerular year, Tenant's Proportionate Share of any
additional Taxes (as defined herein) that are assesseil against the Shopping Center from the
Taxes paid by Landlord for fiscal year 2004-2005, such amount to be evidenced to Tenant if each
a5sess?ncnt occurs.
Should this Lease commence or terminate: on a day other than tl:tc first day of the
calendar year, Tenant's share of Taxes for such partial year shall be pro-rated based an the
number of days of the Term which Calls within such calendar year.
44. COMMON AREA SERVICES: Landlord shall furnish Tenant those services
hereafter described which shall be included its, CAM (defined hereafter):
a. Illuminate parking area until 12:00 PM
b. Refuse container or containers :
c. Exterior lighting on or around building
45. COMMON AREA MAINTENANCE: 't'enant shall pay to Landlord Tenant's
Propordonatc Share of the cast incurmd by Landlord, not to exceed $0.50 ceuts per square- foot,
in operating, maintaining, repairing, and replacing the common areas and facilities of the
Shopping Center ("CAM"), including, but not limited to, iarullord's costs of painting, signing,
lighting, cleaning, striping, policing and security and show removal, premiums for liability,
casualty and other iasur nce maintained by Landlord, repairs to and replacements of paving,
roofing, curbs, walkways, landscaping, drainage. pipes, ducts, conduits lighting and other
KKr Iff-, n/:lsn
14
common facilities and structures, garbage collection and disposal, and common sewer, water,
electric and rather utilities, but CAM costs shall not include rental agency and tnanagemnt fees
that Landlord may incur.
At the commencetrent of each calendar year, Landlord shall provide Tenant with
an estimate of the total projected costs of CAM for such calendar year. During such calendar
year, Tenant shall pay, in advance, each month, one twelfth of Tenant's Proportionate Share of
such projected CAM cost, as Additional Rent. Following the end of each calendar year,
Landlord shill provide Tetlaut with a statement, Setting forth the actual amotuit of CAM costs for
the calendar year, Tenant's Proportionate Share of such costs, and the amount of CAM, if any,
still to be paid by Tenant to Landlord for such calendar year, which amount shall be due within
thirty (30) clays after receipt by Tenant of such stau:rncnc. In the event that the actual amount of
Tenant's Proportionate Share of CAM costs for a calendar year are less than total CAM payrneDU
by Tenant for such period, then such excess -,hail be applied to Tenant's next .uccecding CAM
payment.
Landlord may, from time to time during a calendar year, make reasonable
adjustments to Tenant's, monthly CAM payment to account for differences between actual CAM
costs and Landlords projection of CAM costs for ouch cairuidar year.
If any repair or replacement shall be a capi tat expenditure, CAM costs shall
include the amortized cost of such repair or rtplacenient, batted upon its useful life. Should
municipal refuse disposal be provided and dieie shall be no charge for such service, then it shall
be Tenant's responsibility to take care of and provide. its own refu_,e containers and arrange for
collection and disposal of the same. Such contatnen; shall be placed at a location selected by
Landlord nor sooner than 5:00 p_m. the day before pickup and shall be removed by Tenant not
later than 5:00 p.m. the day of the pickup and shall he steered in the Premises.
Should this Lease cornrrtc11.=e or terminau: on a day other titan the first day of the
calendar year, Tenant's share of CAM cost. for such partial year shall be pro-rated based on the
number of days of the Term which falls within such calendar year.
46. ROOF: Lwidlord shall have the exclusivc right to use and install equipment on
die roof of the building in which the Prcmiecs is located, provided that such use, and the
installation of such equipment, shall not interfere with Tenant's use of the Premises.
,ra y - ,J'ou'r d'j a ?'7- ??
47. SECURITY: As securit or the performance of it. bligations here trader, upon
cxccutioa of this Lease. Tenant has p# d to Landlord, natal agre to maintain thereafter, a security
deposit of One Thousand and Dollars ), Upon the occurrence of any
event of default hereuruier, L ancllord may, from tirne to time, without prejudice to any other
remedy, use the security deposit to the extent nc=sary- to snake good any arrears of Base Rent or
Additional Rent.. or any other loss or damage of Landlord, and Tenant shall thereafter
immediately rep)cnish the all or such portion of the security deposit so used by Landlord. The
remaining balance of the security deposit shall be returned by Landlord to Tenant within a
rcasonablc time after termination of this Lease; provid:d, however, that Landlord shall not be
obligated to return the remaining balance of such security deposit until all payments due from
nonI a:nn1411 15
Tenant to Landlord under this Luse shall have been made in full. The security deposit sliall not
be considered and advaarc payment of rent or a measure of Landlord's damages in case of default
by Tenant. Tenant shall receive no interest on such security deposit and Landlord may
commingle the same with other monies of Landlord. hi the event of a sfalc or transfer of
Landlord's interest in the Premises, Landlord shall have the right to transfer the security deposit
to the purchaser or transferee and upon such transfer Tenant shall look only to thu new landlord
for the return of the security deposit and Landlord shall thereupon be released from all liability to
Tenant for the return of or accounting for such securi^/ deposit.
48. VALIDITY OF LEASE: The terms, conditions, covenants and provisions of this
Lease shall be de mcd to be severable. If any clause or provision herein contained shall be
adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of
any applicable law, it shall not affect the validity of any other clause or provision herein, but such
other clauses or provisions shall remain in full force and effect.
49. ENTIRE CONTRACT: This Lease contains the entire contract between the
parties. No representative, agent or employee of Landlord has been authorized to make any
representations or promises with reference to the within le;tting or to very, alter or modify the
terms hereof. No additions, changts or modification:, renewals or extensions hereof, shall be
binding unless reduced to writing and signed by Landlord and Tenant.
50. GENDER AND BIND LNG EFFECT: fn all references herein to any patties,
pct-sons, entities or corporations and the use of any particular gender or the plural or singular
number is intended to include: the appropriate gender or number as the text of die within
instrument may require. All the terms, covenants and coudition+ herein contained shalt be for
and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs,
executors, adminismators, personal or legal representatives, Successors and assigns.
51. . FORCE MAJEURE: This Lease and the tit7nc of perfoi rnance of die obligations
of both Landlord and Tenant hereunder shall be extended to the extent reasonably necessary to
accommodate any rule, order, regulation or preemption by any governmental entity, authority.,
departmctit agency or subdivision pronuilgateil subs,edue;nt to the date of this Lease.
52. JOINT A-ND SEVERAL LIABILITY: If two or mote individuals, corporations.
partnerships or other business associations (or any combination of the above) atrall sign this
Lease as Tenant, the liability of each such executing party to pay rent grad perform all other
obligations of Tenant. hereunder shall be joint and icycral.
53. APPLICABLE LAW: 't'his Lease ,hall be consuued in accordance with the laws
of the Commonwealth of Pennsylvania.
nciIn-:: nr_um 16
54. WAIVER OF JURY TRIAL.
TENANT HEREBY WAIVES TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, TI&, RELATIONSHIP OF LANDLORD AND
TENANT, TENANT'S USE OR OCCUPANCY OF THE PREARSES, OR ANY CLAIM
OF INJURY OR DAMAGE, OR ANY OTHER REMEDY WITH RESPECT TYIERE, TO.
IN WITNESS HEREOF, the parties hereto have hereunto set their hands and
seals, or caused these presents to be signed by Their proper and corporate officers and their proper
corporate seat to be hereto affixed, the day and year first abave Written.
STATE COLLEGE PREMIER RENTALS, L.P.,a
Pennsylvania limited armcrship.
Tenant Date
?n_?in.nni ds 17
r
Exhibit "A"
ESTOP PEA, CIERTI MATE
The undersign ("Tenant"), hereby ccrtifics that:
1. ArWexed h o as L-xhibit "A'S a taste and ccimt copy of the lease ("Lxase")t,
dated as or the day o[ , 20?, by and between the undersigned, as Tenant, and
State College FreMier Rentals, P., ac Landlord ("Landlord"), covcring certain space
("Premises") identified as Store #-?L in the Shopping Center known as Hoover's Plaza in
Lemoyne, Pennsylvania,.
2. The Lease is valid and in full force and effect on the date hereof. The rcrm_ination
date of the present tent of the Lease, excluding renewals, is 10- -Y-0 [o
3, There are no other agreements between Landlord and Tenant with respect to the
Premises.
4. To Tenant's knowledge, there are no uncured defaults on the part of Tenant or on
the part of Landlord under the Lease, and no event has occurred and no condition exists which,
with the giving of notice or the lapse of time, or both, will constitute a default under the Lease.
5. Fixed (tent payable by Tenant presently is $ per month. Additional
Rent (including Tenant's share of taxes and cotnrnon area maintenance casts) payable by Tenant
presently is $ per month. No rent has been paid by Tenant more than shiny (30)
days in advance of its dtte date. Tenant's security deposit is $
6. Tenant claims no present charge, lien or claim of offset under the L,easc or
otherwise, against rents or other charges due or to become due thereunder.
7, Tenant has accepted possession of the Premises and any improvements required
by the terns of, the Lease to be made by Landlord thereunder have been completed to the
satisfacuorn of Tenant-
The address Car notices to be sent to Tenant is as set forth in the Lease.
Any amendments ur modifications to the Lease should be Bated here:
9. Tenant has no right of first refusal, option or Other right to purchase the Premises
cr the Building.
This Estoppe3 Certificate may be relied upon by Landlord and
and their successors and assignees.
i
IN WITNESSHERE •, Chc undereigned has ex ted and delivered this Estoppel
Certificate on the ?`a rlay of DO
enant)
ay:
Title:
M_7 w: mr_ix.4
2
VERIFICATION
I verify that the statements made in the foregoing Complaint for
Declaratory Judgment are true and correct.
I understand that false statements herein are made subject to the penalties of
?S Pa, C. S. §4904 relating to unsworn falsification to authorities.
J j
Date: February 19 2007
Kimberly S. ,Eanzhof f '?'''#
VERIFICATION
verify that the statements made in the foregoing Petition to Open or Strike Judgment are
true and correct.
understand that false statements herein are made subject to the penalties of 18 PA C.S.
§ 4904 relating to unsworn falsification to authorities.
Dated: (tL I C-?%
Ki berly S. ?4nziioff
_ .r
CERTIFICATE OF SERVICE
I, Carol A. Masich, Legal Assistant to John W. Purcell, Jr., Attorney for the
Defendant, hereby certify that a true and correct copy of the foregoing was served on the
Plaintiff by forwarding said copy to its attorney at the following address, by first class U.S.
Mail on April 11, 2007:
David B. Consiglio, Esquire
Miller, Kistler, Campbell, Miller, Williams & Benson, Inc.
720 South Atherton Street
State College, PA 16801
Carol A. Masich, Leal Assistant to
JOHN W. PURCELL, JR.
I.D. NO. 29955
•
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
STATE COLLEGE PREMIER ;
RENTALS, L.P.
Plaintiff, Civil Action No. 2007-1528
vs.
KIMBERLY S. BANZHOFF, t/d/b/a
UNDERNEATH IT ALL,
Defendant.
PLAINTIFF'S RESPONSE TO DEFENDANT'S PETITION
TO OPEN OR STRIKE JUDGMENT
AND NOW, comes Plaintiff, by the through its undersigned counsel, and files this
Response to Defendant's Petition to Open or Strike Judgment and states in support thereof
as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Each and every allegation set forth in Paragraph 4 of Defendant's Petition is
specifically denied:
(A) Admitted in part; denied in part. It is admitted only Defendant named
in the Complaint is an individual; Defendant herself, however, has
attributed the fictitious name of Underneath It All to herself, as clearly
set forth in the Lease; allegations to the contrary are specifically denied.
(B) Denied as unknown and irrelevant. The Lease governs this action as
opposed to any undisclosed filings made by Defendant, or any of her
alter egos, with the Department of State. In particular, Defendant,
Kimberly S. Banzhoff, has identified herself in the Lease as the tenant
(1) in the identification clause; (2) in Paragraph 31 of the Lease where
Defendant identifies herself as the "proprietor"; (3) on the signature
page of the Lease; (4) on the Estoppel Certificate; and (5) on the
signature page of the Estoppel Certificate. Notably, the Verification
signed by Defendant is the same signature found in the Lease.
Moreover, the entity "KSB Enterprises, Inc." is identified nowhere in
the Lease. Defendant held herself out as an individual proprietor with
the trade name of Underneath It All and is thus bound thereby as a
matter of law.
(C) Unknown and irrelevant. By way of further response, Plaintiff
incorporates herein by reference as if set forth fully the response set
forth in Paragraphs 4(A) and (B) hereof.
(D) Denied. By way of further response, Plaintiff incorporates herein by
reference as if set forth fully its response as set forth in Paragraph 4(B)
hereof.
-2-
. 9
(E) Denied. The Lease is signed by the tenant, Kimberly S. Banzhoff, and
not "on behalf of tenant.
(F) Denied. Paragraph 31 of the Lease, the confession of judgment clause,
clearly identifies the tenant as Kimberly S. Banzhoff, "proprietor."
(G) Denied. The confession of judgment clause, the signature page of the
Lease, the Estoppel Certificate, and the signature page of the Estoppel
Certificate all clearly and unambiguously identify Kimberly S.
Banzhoff, as individual proprietor as tenant.
(H) It is admitted only that KSB Enterprises, Inc. did indeed file a
Complaint for Declaratory Judgment making various requests. It is
denied, however, that KSB Enterprises, Inc. is a proper party to this
Petition except to the extent that KSB Enterprises, Inc. is an alter ego
of the individual Kimberly S. Banzhoff, the tenant of the subject lease.
Allegations to the contrary are specifically denied. By way of further
response Preliminary Objections to the KSB Complaint are pending.
(I) Admitted.
(J) The allegations set forth in Subparagraph (J) is a conclusion of law to
which no response is required. To the extent a response is deemed
required, said allegations are specifically denied. To the contrary, the
Lease was entered into intelligently, freely, and voluntarily.
-3-
WHEREFORE, Plaintiff respectfully prays that the Petitioner's Petition to Open or
Strike Judgment be denied and dismissed.
Respectfully submitted,
MILLER, KISTLER, CAMPBELL,
MILLER, WIL]1IAMS & BENSON, INC.
By:
Date: April 26, 2007
David B.* onsiglio, Esquire
I.D.# 72 2
720 South Atherton Street
State College, PA 16801
(814) 234-1500
-4-
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
STATE COLLEGE PREMIER
RENTALS, L.P.
Plaintiff, Civil Action No. 2007-1528
VS.
KIMBERLY S. BANZHOFF, t/d/b/a
UNDERNEATH IT ALL,
Defendant.
CERTIFICATE OF SERVICE
I, David B. Consiglio, Esquire, of Miller, Kistler, Campbell, Miller, Williams &
Benson, Inc., do hereby certify that on this 26`h day of April, 2007, a true and correct copy
of the foregoing document was served on the following person by depositing the same in the
United States Mail, postage prepaid, addressed as follows:
John W. Purcell, Jr.
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
MILLER, KISTLER, CAMPBELL,
MILLER, WILLIAMS & BENSON, INC.
By:
David B. Consiglio, Esquire
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STATE COLLEGE
PREMIER RENTALS,
L.P.,
Plaintiff
V.
KIMBERLY S.
BANZHOFF, t/d/b/a
UNDERNEATH IT ALL,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-1528 CIVIL TERM
ORDER OF COURT
AND NOW, this 30th day of April, 2007, upon consideration of Defendant's
Petition To Open or Strike Judgment, it is ordered that:
1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to
the relief requested;
2. Plaintiff shall file an answer to the motion within 21 days of the date of this
order;
3. The petition shall be decided under Pa. R.C.P. 206.7;
4. Depositions shall be completed within 49 days of the date of this order;
5. Argument shall be held on Wednesday, August 1, 2007, at 1:30 p.m., in
Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania.
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10 6. Briefs shall be submitted at least seven days prior to argument.
BY THE COURT,
vid B. Consiglio, Esq.
720 South Atherton Street
State College, PA 16801
Attorney for Plaintiff
,;An W. Purcell, Jr., Esq.
1719 North Front Street
Harrisburg, PA 17102
Attorney for Defendant
J
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STATE COLLEGE
PREMIER RENTALS,
L.P.,
Plaintiff
V.
KIMBERLY S.
BANZHOFF, t/d/b/a
UNDERNEATH IT ALL,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-1528 CIVIL TERM
ORDER OF COURT
AND NOW, this 3Is' day of July, 2007, upon consideration of the attached letter
from John W. Purcell, Jr., Esq., attorney for Defendant, the argument previously
scheduled for August 1, 2007, on Defendant's Petition To Open or Strike Judgment, is
hereby continued generally.
COUNSEL are directed to notify the Court when this matter is satisfied or if the
argument is to be rescheduled.
BY THE COURT,
,,Xavid B. Consiglio, Esq.
720 South Atherton Street
State College, PA 16801
Attorney for Plaintiff
ohn W. Purcell, Jr., Esq.
1719 North Front Street
Harrisburg, PA 17102
Attorney for Defendant
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Oler, Jr., J.
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JUL-31-2007 11:17 PURCELL,KRUG,HALLER
?j LAW OFFICES
??i/m;' 5 g- 61)r 1719 NORTH FRONT STREET
HARRISBURG, PENNSYLVANIA 17102-2392
HOWARDB, KRUO TELEPHONE (717) 234-4178
LEON P. HALLER FAX (717) 233.1149
JOHN 'W. PURCELL JR.
JILL M. WUqEXA
NICHOLE M. sTALEY O'GORMAN
WA A. RYNARD
LAToYA C. WTNPmJz
717 233 1139 P.01i01
HERSHEY
(717)533.3636
JOSEPH NISSLEY (1910.1882)
JOHN W. PURULL
Of Counsel
July 31, 2007
The Honorable J. Wesley Oler, Jr.
Court of Common Pleas
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
Re: State College Premier Rentals, LP v, Kimberly S. Banzhoff
No. 07-1528
Dear Judge Oler:
Via Fax
240-6462
Plaintiff's counsel and I have reached an agreement regarding the above matter, in which my client is
going to pay a sum of money over a period of time. We have agreed that the judgment would remain
standing, and that the Petition to Open would remain opera also. In other words, we have agreed to
simply continue the argument of the issues on the Petition to Open pending payment. Once payment is
made in full, the judgment will be satisfied,
To that end, it is not necessary for us to have an argument before you tomorrow at 1:30 p,m., so please
mark your calendar accordingly.
If you need anything flnther, please let me know.
JWP,JR:cm
c: David B. Consiglio, Esquire via fax - (S 14) 234-1549
Kim Banzhoff
TOTAL P.01
P
STATE COLLEGE :
PREMIER RENTALS,
LP.,
Plaintiff
V.
KIMBERLY S.
BANZHOFF, t/d/b/a
UNDERNEATH IT ALL,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-1528 CIVIL TERM
ORDER OF COURT
AND NOW, this 15?h day of February, 2008, upon consideration of the attached
letter from David B. Consiglio, Esq., attorney for Plaintiff, argument is scheduled for
Monday, March 10, 2008, at 11:15 a.m., in Courtroom No. 1, Cumberland County
Courthouse, Carlisle, Pennsylvania, on Defendant's Petition To Open or Strike Judgment.
BY THE COURT,
David B. Consiglio, Esq.
720 South Atherton Street
State College, PA 16801
Attorney for Plaintiff
? John W. Purcell, Jr., Esq.
1719 North Front Street
Harrisburg, PA 17102
Attorney for Defendant
J/ Wesley , Jr., J.
lip ?c'F_.5' rr?? t L£GL
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AdViOiv, "Hit Hid 3A J0
LAW OFFICES OF
MILLER, KISTLER, CAMPBELL, MILLER, WILLIAMS & BENSON, INC.
A PROFESSIONAL CORPORATION
RICHARD L. CAMPBELL
JOHN R. MILLER, III
TERRY J. WILLIAMS
TRACEY G. BENSON*
SCOTT C. ETTER, Ph.D.
DAVID B. CONSIGLIO**
STACY PARKS MILLER
JULIA R. CRONIN
BRIAN K. MARSHALL
PLEASE REPLY TO:
STATE COLLEGE OFFICE
720 SOUTH ATHERTON STREET
STATE COLLEGE, PA. 168014669
(814) 234-1500
FAX (814) 234-1549
AND
124 NORTH ALLEGHENY STREET
BELLEFONTE, PA. 16823-1643
(814) 355-5474
GENERAL FAX (814) 355-5340
REAL ESTATE FAX (814) 357-0264
*ALSO ADMITTED IN WEST VIRGINIA
**ALSO ADMITTED IN MARYLAND
Honorable J. Wesley Oler, Jr.
Cumberland County Prothonotary
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
February 11, 2008
Re: State College Premier Rentals, LP v. Kimberly S. Banzhoff
Civil Action No. 07-1528 (Cumberland County, PA)
Dear Judge Oler:
JOHN R. MILLER, JR.
(1919-2007)
COUNSEL TO THE FIRM
ROBERT K. KISTLER
Please be advised that I represent Plaintiff in regard to the above-captioned matter. I enclose
herewith Your Honor's Order of July 31, 2007 as well as Attorney Purcell's letter to you of same
date. While I agreed with Attorney Purcell's letter to Your Honor of July 31, 2007, Defendant has
never made any payment or even begun to make payments and therefore, I must respectfully request,
per the aforesaid Order, to re-schedule the argument on Defendant's Petition to Open or Strike
Judgment. Also enclosed herewith is a proposed Order for the requested re-scheduling.
Thank you for your attention to this matter.
Respectfully submitted,
MILLER, KISTLER, CAMPBELL,
MILLER, WI JAMS & BENSON, INC.
By:
David B. nsiglio, Esquire
DBC/sll
Enclosure
cc: John W. Purcell, Jr., Esquire (w. enclosure)
WWW.MKCLAW.COM
FEB T 2 21?
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STATE COLLEGE
PREMIER RENTALS,
L.P.,
Plaintiff
V.
KIMBERLY S.
BANZHOFF, t/d/b/a
UNDERNEATH IT ALL,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-1528 CIVIL TERM
IN RE: DEFENDANT'S PETITION TO OPEN OR
STRIKE JUDGMENT
ORDER OF COURT
AND NOW, this 7th day of March, 2008, upon consideration of the attached letter
from David B. Consiglio, Esq., attorney for Plaintiff, this matter is hereby continued
generally and the argument scheduled for March 10, 2008, is cancelled. Counsel are
directed to notify the Court at such time as this matter is resolved or if a hearing is
requested.
BY THE COURT,
David B. Consiglio, Esq.
720 South Atherton Street
State College, PA 16801
Attorney for Plaintiff
??John W. Purcell, Jr., Esq.
1719 North Front Street
Harrisburg, PA 17102
Attorney for Defendant
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Mar, 7. 2008 1:35PM MKC Law Office - SC No, 549 P. 2/2
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LAW OFFICES OF
MILLER, KISTLER, CAMPBELL, MILLER, WILLIAMS & BENSON, INC.
A PROFESSIONAL CORPORATION
RICHARD T. CAMPBELL
JOHN R MTIS,FR, TR
TERRYJ WILLIAM
TRACEY G. BENSON"
SCOTT C. ETPER, Ph.D_
DAVID B. CONSIGTJO**
STACY PARKS MILLER
JULIA F. CROWN
BRIAN K. MARSHALL
PLEASE REPLY TO:
STATE COLLEGE OFFICE
720 SOUTH ATHERTON STREET
STATE COLLEGE, PA,16Wl- 4669
(814) 234-7500
PAX (814) 234-1549
AND
124 NORTH ALLEGHENY STREET
BELLEFONTE, PA. 16823-1643
(814)355.5474
GMQMALFAX (814) 39rr5340
REAL ESTATE FAX (814) 357-0264
W.50 ADMITTED IN WEST VIRGINIA
"ATSO ADMRTF.D IN pMARYCAND
VIA FACSDULE (717) 240-6462
Honorable J. Wesley Oler, Jr.
Cumberland County Prothonotary
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
March 7, 2008
Re: State College Premier Rentals, LP v. Kimberly S. Banzhoff
Civil Action No. 07-152$ (Cumberland County, PA)
Dear Judge Oler:
JOHN R MILLER, JR.
(1929-2007)
COUNSEL TO THE FIRM
ROBERT K. KOTLER
The above matter is scheduled for argument on Monday, March 10, 2008 at 11:1 S a.m. and
in follow up to the message which I left with your Chambers this afternoon, the parties are in the
process ofresolving the matter and the argument will not be necessary. We expect to have the matter
formally resolved on the docket in the near future.
Thank you for your attention to this matter.
Respectfully submitted,
MILLER, KLSTLER, CAMPBELL,
MILLER, WIL S & BENSON, INC.
By:
David B. C iglio, Esquire
DBC/sll
cc: John W. Purcell, Jr., Esquire (via fax (717) 233-1149)
Ara Kervandjian, State College Premier Rentals, LP
WWW.M CLAW_COM
OkiGh'AL
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
STATE COLLEGE PREMIER
RENTALS, L.P.
Plaintiff,
vs.
Civil Action No. 2007-1528
KIMBERLY S. BANZHOFF, t/d/b/a
UNDERNEATH IT ALL,
Defendant.
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Please mark the above-captioned matter settled, satisfied and discontinued with
prejudice.
Date: March 19, 2008
Respectfully submitted,
MILLER, KISTLER, CAMPBELL,
MILLER, WILLIAMS & BENSON, INC.
By:
David . Consiglio, Esquire
I.D.# 72772
720 South Atherton Street
State College, PA 16801
(814) 234-1500
%
I. .
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
STATE COLLEGE PREMIER
RENTALS, L.P.
Plaintiff, Civil Action No. 2007-1528
VS.
KIMBERLY S. BANZHOFF, t/d/b/a
UNDERNEATH IT ALL,
Defendant.
CERTIFICATE OF SERVICE
I, David B. Consiglio, Esquire, of Miller, Kistler, Campbell, Miller, Williams &
Benson, Inc., do hereby certify that on this 19!`' day of March, 2008, a true and correct copy
of the foregoing document was served on the following person by depositing the same in the
United States Mail, postage prepaid, addressed as follows:
John W. Purcell, Jr.
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
MILLER, KISTLER, CAMPBELL,
MILLER, WILLIAMS & BENSON, INC.
By:
David e Consiglio, Esquire
C`'r
„ fit-