HomeMy WebLinkAbout01-04151Johnson, Duffie, Stewart & Weidner
By: David J. Lanza
I.D. No. 55782
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717)761-4540
LMRES REAL ESTATE ADVISERS, INC., Ua
EASTERN RETAIL HOLDINGS, L.P.,
Plaintiff
v.
PORT DARE, individually and tla PETLAND,
Defendants
CIVIL ACTION -LAW
IN EJECTMENT
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION THEREON
TO: PORT DARE, individually and Ua PETLAND
6520 Carlisle Pike, Sfore D-1
Mechanicsburg, Pennsylvania 17055
A judgment in the amount of $191,159.93 has been entered against you and in favor of the Plaintiff without any
prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly
signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days
after the date on which this notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU
MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN
THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOUR OR YOU MAY LOSE YOUR
RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR
CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
(717) 240-6200
:147686
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND CO//UNTY, PENN~SYLV~A~NQIA
NO. d~ ~ 7 ICJ ~ ~-~'-`1J
JOHNSON, D,yJFFIE, STEWART & WEIDNER
David J. Lanza
:.
Johnson, Duffie, Stewart & Weidner
By: David J. Lanza
I.D. No. 55782
301 Mazket Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717)761-4540
Attorneys for Plaintiff
LMRES REAL ESTATE ADVISERS, INC., t/a
EASTERN RETAIL HOLDINGS, L.P.,
Plaintiff
v.
PORT DARE, individually and t/a PETLAND,
Defendants
T0: PORT DARE, individually and t/a PETLAND
6520 Carlisle Pike, Store D-1
Mechanicsburg, Pennsylvania 17055
IN THE COURT OF COMMON PLEAS OF
CUMBERLA//\ND C/O,~UN~T-Y7, PENNSYLVANIA
CIVIL ACTION -LAW
IN EJECTMENT
You are hereby notified that on .2001, judgment by confession was entered against
you in the sum of $191,159.93, and for possession of the real estate at 6520 Carlisle Pike, Store D-1, Mechanicsburg,
Pennsylvania 17055, in the above-captioned case.
DATE:
Prothonotary
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR
CANN07 AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
(717)240-6200
I hereby certify that the following is the address of the Defendants stated in the certificate of residence:
PORT DARE, individually and t/a PETLAND
6520 Carlisle Pike, Store D-1
Mechanicsburg, PA 17055 l
~~ G'~
Attorney for Plaintiff
:147686
{iAa'h@ffi~fk193&b1L§V~82Sbut h~SC4 k §$srv, ,t,~s Di
Johnson, Duffie, Stewart & Weidner
By: David J. Lanza
I.D. No. 55782
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717)761-4540
LMRES REAL ESTATE ADVISERS, INC., t/a
EASTERN RETAIL HOLDINGS, L.P.,
Plaintiff
v.
PORT DARE, individually and tla PETLAND,
Defendants
NOTICE UNDER RULE 2973.2
OF JUDGMENT AND EXECUTION
TO: PDRT DARE, individually and Ua PETLAND
6520 Carlisle Pike, Store D-1
Mechanicsburg, Pennsylvania 17055
CIVIL ACTION -LAW
IN EJECTMENT
A judgment for possession of real property has been entered against you and in favor of the Plaintiff without
prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly
executed by you. The Sheriff may remove you from the property at any time after thirty (30) days after the date on
which this Notice is served on you.
You may have legal rights to defeat the judgment or to prevent your being removed from the property. ANY
PETITION SEEKING RELIEF FROM THE JUDGMENT MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE
DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR
CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
(717)240-6200
:147686
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOHNSON, DU FIE STEWART & WEIDNER
BY:
David J. Lanza
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Johnson, Duffie, Stewart & Weidner
By: David J. Lanza
I.D. No. 55782
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717)761-4540
LMRES REAL ESTATE ADVISERS, INC., t/a
EASTERN RETAIL HOLDINGS, L.P.,
Plaintiff
v.
PORT DARE, individually and t/a PETLAND,
Defendants
CONFESSION OF JUDGMENT
FOR MONEY DAMA GES
CIVIL ACTION -LAW
IN EJECTMENT
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 Plaintiff and
against the Defendant as follows:
Unpaid rent from June 2001 through June 2004 $160,000.08
Past-due late fees $ 226.50
Minimum additional charges pursuant to §1.1(H)
from June 2001 through June 2004 $ 19,140.00
Interest at 18% from July 1, 2001, through August 1, 2000 $ 2,690.50
Five percent (5%) attorney fees $ 9.102.85
TOTAL $191,159.93
Respectfully submitted,
JOHNSON,~DUFDFIE, STEWART & WEIDNER
By: ~vt j~~
David J. Lanza
Attorney I.D. No. 55782
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Dated: Telephone (717) 761-4540
:147684
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. ~j- ~g ~ ~--u,~2~~
Johnson, Duffie, Stewart & Weidner
By: David J. Lanza
I.D. No. 55782
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717)761-4540
LMRES REAL ESTATE ADVISERS, INC., t/a
EASTERN RETAIL HOLDINGS, L.P.,
Plaintiff
v.
PORT DARE, individually and t/a PETLAND,
Defendants
CONFESSION OF JUDGMENT
IN EJECTMENT
CIVIL ACTION -LAW
IN EJECTMENT
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 ejectment in favor of
Plaintiff and against the Defendant for possession of the real property situate at 6520 Carlisle Pike, Store
D-1, Mechanicsburg, Silver Spring Township, Cumberland County, Pennsylvania 17055.
Respectfully submitted,
JOHNSON, DUFFIE, STEWART & WEIDNER
By: ~~
David J. Lanza
Attorney I.D. No. 55782
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Dated: Telephone (717) 761-4540
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
:147685
_.
Johnson, Duftie, Stewart & Weidner
By: David J. Lanza
I.D. No. 55782 Attorneys for Plaintiff
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717)761-4540
LMRES REAL ESTATE ADVISERS, INC., t/a
EASTERN RETAIL HOLDINGS, L.P.,
Plaintiff
v.
PORT DARE, individually and t/a PETLAND,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
CIVIL ACTION -LAW
IN EJECTMENT
COMPLAINT PURSUANT TO Pa.R.C.P. 2951(b) and Pa.R.C.P. 2971(a)
FOR CONFESSION OF JUDGMENT FOR
MONEY DAMAGES AND POSSESSION
AND NOW, this 5~h day of July 2001, comes the Plaintiff, LMRES REAL ESTATE ADVISERS, INC.,
t/a EASTERN RETAIL HOLDINGS, L.P., by and through its undersigned attorneys, Johnson, Duffie,
Stewart & Weidner, and files this Complaint, and in support thereof avers as follows:
1. The Plaintiff, LMRES REAL ESTATE ADVISERS, INC., t/a EASTERN RETAIL HOLDINGS,
L. P., is a Delaware limited partnership with offices and a principal place of business at 1735 Market Street,
Philadelphia, Pennsylvania 19103.
2. The Defendant, PORT DARE, is an adult individual trading and doing business as PETLAND,
with a place of business at 6520 Carlisle Pike, Store D-1, Mechanicsburg, Cumberland County,
Pennsylvania 17055.
3. On or about June 24, 1994, Plaintiffs predecessor and Defendant entered into an Indenture
of Lease ("Lease") for the premises located at Silver Springs Commons, Store No. 3, Mechanicsburg,
Cumberland County, Pennsylvania, a true and correct copy of which is attached hereto as Exhibit "A." True
and correct copies of assignments by which Plaintiff became entitled to enforce the Lease are attached
hereto as Exhibits "B" and "C."
4. Said Lease has not been assigned by Plaintiff.
5. No judgment on the Lease has been entered in any jurisdiction.
COUNTI
FAILURE TO PAY RENT
6. The allegations contained in paragraphs one through six above are incorporated herein by
reference.
7. The aforesaid Lease requires Defendants to pay unto Plaintiff the sum of Four Thousand and
00/100 Dollars ($4,000.00) per month from 1996 through June 2002, with subsequent amounts due as set
forth in §1.1 G of Exhibit "A."
8. Defendant has failed to make the required monthly rental payments from and after July 2001.
9. Defendants' June payment was late, thereby resulting in late charges pursuant to §2.10 in the
amount of $226.50.
10. Defendant's rental payments have repeatedly been late throughout the term of this Lease.
11. Throughout the term of this Lease, Defendant has repeatedly attempted to pay his rent with
checks which could not be honored by Defendant's bank.
12. As a result of Defendants' failure to make the monthly rental payments, the remaining
monthly payments (through May 2004) have become immediately due and payable.
13. Pursuant to the aforesaid Lease, Defendants are required to reimburse Plaintiff for Plaintiff's
"reasonable attorney fees." §14.2(A).
14. The attorney fees expected to be incurred by Plaintiff in this case amount to five percent (5%)
of the balance due.
15. Pursuant to §14.2(A), Plaintiff is permitted to confess judgment for all additional charges and
additional rent specified in the Lease.
16. Pursuant to §1.1(H) of the Lease, the minimum additional charges amount to Six Thousand
Three Hundred Eighty and 00/100 Dollars ($8,380.00) per year.
17. Defendant, pursuant to §2.6 of the Lease, is required to provide to Plaintiff gross sales and
business sales reports every month detailing Defendants' revenues from the operation of the leased
premises.
18. Despite demand, Defendants have refused to provide Plaintiff with the aforesaid statements.
19. Such failure and refusal has resulted in loss of "percentage rent " to Plaintiff.
20. There is justly due and owing to the Plaintiff from the Defendants on account of the aforesaid
breach the sum of One Hundred Ninety-one Thousand One Hundred Fifty-nine and 93/100 Dollars
($191,159.93), calculated as follows:
Unpaid rent from July 2001 through June 2004 $160,000.08
Past-due late fees $ 226.50
Minimum additional charges pursuant to §1.1(H)
from July 2001 through June 2004 $ 19,140.00
Interest at 18% from July 1, 2001, through August 1, 2000 $ 2,690.50
Five percent (5%) attorney fees $ 9.102.85
TOTAL $191,159.93
21. Plaintiff has demanded payment from the Defendants, but Defendants have neglected and
refused, and continue to refuse, to pay the same or any part thereof.
WHEREFORE, Plaintiff demands judgment against Defendants in the amount of One Hundred
Ninety-one Thousand One Hundred Fifty-nine and 93/100 Dollars ($191,159.93), plus such additional sums
as the Court determines are due and owing.
COUNT II
MISCELLANEOUS LEASE BREACHES
22. The allegations contained in paragraphs one through twenty-one above are incorporated
herein by reference.
23. Plaintiff operates afamily-oriented retail shopping center, leasing to a wide variety of retail
tenants who provide such items as home furnishings, family-oriented merchandise, home entertainment
products, banking services, restaurant facilities, and home repair products.
24. The continued viability of Plaintiffs shopping center is dependent upon the continued
reputation of the shopping center as afamily-friendly retail center.
25. Defendants' repeated violations of Pennsylvania's Criminal Code on the leased premises
violates specific provisions of the Lease and damages the reputation ofthe-shopping center.
26. Criminal activity on the leased premises is inconsistent with the operation of afamily-friendly
retail center.
27. Defendant Port Dare has violated 18 Pa.C.S.A. §5511(a)(2.1)(i)(A) of the Pennsylvania
Criminal Code by freezing and then killing a kitten on the premises.
28. Defendant Dare has effectuated this violation of 18 Pa.C.S.A. §5511(a)(2.1)(i)(A) in a manner
which was designed to inflict maximum suffering upon the animal and which is shocking to the sensibilities of
the public and consumers in general.
29. Defendant Dare's violation of 18 Pa.C.S.A. §5511(a)(2.1)(i)(A) has generated a well-
publicized criminal prosecution currently pending in the criminal court of Cumberland County.
30. Defendant Dare's criminal prosecution has generated widespread publicity which has
damaged the reputation of the retail center.
31. Placing a live animal into a freezer for an extended period before smashing the animal's head
in front of witnesses is inconsistent with the operation of afamily-oriented retail center.
32. Prior to Defendant Dare's conduct in brutally killing an animal on the leased premises,
Defendant conducted illegal drug trafficking activity in violation of 35 P.S. §780-113(a)(30) and 18 Pa.C.S.A.
§903 of the Pennsylvania Criminal Code.
33. Defendant Dare arranged for deliveries of large quantities of marijuana to the leased
premises so that said marijuana could be distributed throughout the Central Pennsylvania region. A true and
correct copy of the grand jury presentment detailing Defendant's illegal drug trafficking activities and
containing references to incidents in which Defendant used the leased premises as a drug trafficking
distribution center is attached hereto as Exhibit "D."
34. Defendant's illegal trafficking activity has resulted in the execution of at least one search
warrant on the leased premises by law enforcement authorities.
35. Illegal narcotics trafficking activity is inconsistent with the operation of afamily-oriented retail
center.
36. By virtue of Defendant Dare's illegal activity, Plaintiff is entitled to immediate possession of
the aforesaid leased premises.
37. Defendant Dare's illegal activities violate §§6.2(C), 10.1, and 10.4 of the Lease.
38. Plaintiff is entitled to immediate possession of the leased premises at 6520 Carlisle Pike,
Store D-1, Mechanicsburg, Silver Spring Township, Cumberland County, Pennsylvania 17055.
WHEREFORE, Plaintiff demands judgment against Defendants for possession of the aforesaid
leased premises.
Respectfully submitted,
JOHNSON, DUFFIE, STEWART & WEIDNER
By: d~~v `" ~
David J. Lanza
Attorney I.D. No. 55782
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
:147556 Attorneys for Plaintiff
VERIFICATION
I, JACKIE EAKIN, Regional Asset Manager of Crossgates Management, Inc., Managing Agent for
LMRES Real Estate Advisers, Inc., verify that the statements made in this Complaint are true and correct to
the best of my knowledge, information and belief. I understand that false statements made herein are made
subject to the penalties of 18 Pa. C.S.A §4904, relating to unsworn falsification to authorities.
CROSSGATES MANAGEMENT, INC., Managing Agent for
LMRES REAL ESTATE ADVISERS, INC., Ua
EASTERN RETAIL HOLDINGS, L.P.
Date: "~'~ ~ C~1 By:
J kie Eakin, Regional Asset Manager
• ~ ~~'~
SILVER SPRING COMMONS
SHOPPING CENTER STORE LEASE ~/~~f~ ~/
INDEX TO LEASE
'~iv" S~~~r '~~ -~~-'
PORT DARE
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Lq~y/~Y~-Y/ ~.~ ./
ARTICLE
or
SECTION CAPTIO PAGE
I. GRANT AND BASIC TERMS ..................... 1
Section 1.1 Hasic Data ................................ 1
1.2 Construction of Demised Premises...:....... 2
1.3 Demised Premises .......................... 3
1.4 Acceptance of Demised Premises............ 3
1.5 Term of Lease. ......................... 3
1.6 Option to Extend ..............:........... 4
II. 2.L'NT ...................................... 4
Section 2.1 Annual Minimum Rent ....................... 4
2.2 Commencement of Rent aad Other Charges.... 5
2.3 Taxes ..... ............................ 5
2.4 Common Area Maintenance Charges........... 7
2.5 Adjustme.^_t of Minimum Rent ................ 7
2.6 Percentage Rent ........................... 7
2.7 Gross Sales ............................... 8
2.8 Record iCeeping ............................ 9
2.9 Audit ..................................... 10
2.10 Late Charge.. ...... .................. 10
2.11 Definition. of Additional Rent ............. 10
III. IISE OF DEMISED PREMISES .................... 11
Section 3.1 Tenant's Use .............................. 11
3.2 Continuous Operation ...................... 12
3.3 Radius of Operation ....................... 1Z
~- ,
3.4
Utilities .................................
12
'3 .5 Signs ..................................... 13
3.6 Sewer Discharge Limitation ................ i4
IV. COMMON AREAS .............................. 14
Section 4.i Definition of Common Pszas ................ 14
4.2 Common A_Yza Operating Costs ............... 14
4.3 Control of Common Arrea .................... 15
V. CONSTRUCTION AND ALTERATIONS .............. 15
Section 5.1 Landlord's Construction ................... 15
5.2 Tenant`s P.Iterations ...................... 15
5.3 guilder's Risk ............................ 15
5.4 Tenant's Discharge of Liens ............... 17
VI. MAINTENANCE AND REPAIRS ................... 17
Section 6.1 Landlord's Obligations .................... 17
6.2 Tenant's Oblications ...................... 17
6.3 Surrender of Demised Premises ............. 19
1
ARTICLE
or
SECTION CAPTION PAGE
VIZ. INSIIRANCE AND INDEMNITY ................... 19
Section 7.1 Casualty Insurance ........................ 19
7.2 Waiver of Subrogation ..................... 20
7.3 Increase in Fire Insurance Premiums....... 20
7.4 Liability Insurance. . ...................... 20
7.5 Business Interruption Insurance........... 21
7.6 Indemnification of Landlord ............... 21
7.7 Plate Glass ............................... 21
7.8 Landlord's Mortcacee ...................... 21
VIIZ. SUBORDI23ATION, NOTICE, ESTOPPEL AND
ATTORNMENT ............................. 22
Section 8.1 Subordination ............................. 22
8.2 Notice to Landlord ........................ 22
8.3 Estoppel Certificate ...................... 23
8.4 Attornment ................................ 23
8.5 Assignment of Rents ....................... 24
IX. ASSIGNMENT AND SIIBLETTI2iG ................. 24
Section 9.1 Consent Aecuized .......................... 24
X. WASTE, GOVERNM..NTAL AND INSIIR.aiNCE
REQIIIREMENTS AND HAZARDOII5 SUBSTANCES.. 26
Section 10.1 Waste or Nuisance ......................... 26
10.2 Insurance Reouirements .................... 26
10.3 Hazardous Substances ...................... 25
10.E Government Permits ........................ 28
10.. Survival .................................. 28
XI. ADVERTISING AND PROMOTIONAL PROGRAM....... 28
Section 11.1 Advertising and Promotional Program....... 28
XII. DESTRIICTION ............................... 29
Section 12.1 Total or Partial Destruction .............. 29
12.2 Partial Destruction of Shonning Center.... 30
12.3 Tenant's Restoration ...................... 31
12.4 Substantial Damage ........................ 31
XIII. EMINENT DOMAIN ............................ 31
Section 13.1. Condemnation .............................. 31
13.2 Restoration of Demised Premises........... 31
XIV. DEFAULT OF TS..FTANT ......................... 32
Section 14.1 Default ................................... 32
14.2 Remedies .................................. 33
i4.3 Additional and Percentace Rent............
~ 36
14.4 Guarantors .............
................... 36
14.5 Bankruptcy or Other Default ............... 36
14.6 Failure to Pay, Interest .................. 38
XV. ACCESS BY LANDLORD ........................ 38
Section 15.1 Right of Entry ............................ 38
XVI. TENANT'S PROPERTY ......................... 39
Section 16.1 Taxes on Leasehold ........................ 39
16.2 Loss and Damace ........................... 39
16.3 Notic= by Tenant .......................... 39
XVIi. HOLDING OVER, SIICCESSORS .................. 39
Section 17.1 Bolding Over .............................. 39
\ r
ARTICLE
or
SECTION
CAPTION
PAGE
VIII.
Section
XIX
Section
17.2
18.1
19.1
19.2
19.3
19.4
19.5
19.6
19.7
19.8
19.9
19.10
19.11
19.12
19.13
19.14
19.15
19.16
19.17
19.18
19.19
19.20
19.21
19.22
19.23
XX.
Section 20.1
20.2
20.3
XXI
Section 21.1
21.2
EXHIBITS:
Successors and Assigns ....................
QIIIET ENJOYMENT ............................
Landlord's Covenant .......................
MISCELLANEOIIS .............................
Waiver... ... .........................
Accord and Satisfaction ...................
No Partnership ............................
Force Majeure .............................
Landlord's Liability ......................
Notices and Payments ......................
Financial Statements ......................
Guarantors ....... .......................
Captions and Section Numbers ..............
Definitions... ... ....................
Partial Invalidity ........................
Recording .................................
Entire Agreement ..........................
Survival ..................................
Aaolicable Law ............................
Consents and Approvals ....................
Authority.......... .... ...............
When Lease Becomes Effective ..............
Interpretation ............................
Brokers ...................................
Landlord's Fees and Expenses ..............
Other Agreements :.........................
Shift Clause ..............................
SECIIRITY AND RE^IT DEPOSITS ................
Amount of Security Deposit ................
Use and Re*_urn of Security Deposit........
Rent Deposit ..............................
TENANT COVENANTS, EASEMENTS ...............
Tenant Covenant ...........................
Easements .................................
A. Demised Premises
B. Landlord's Work
C. Percentage Rent Statement
D. Rules and Regulations
E. Sign Criteria
F. Tenant's Work
G. Guaranty Agreement
40
40
4n
40
a0
41
41
41
41
42
42
42
42
43
c3
43
a3
a4
44
a4
44
45
45
45
46
46
46
47
47
47
48
ag
cg
48
INDENTIIRE OF LEASE
THIS INDENTURE OF LEASE made as of theday of 1~x,L,_
199, by and between the landlord named in Section 1.1( )
(hereinafter referred to as the "Landlord"), and the tenant named
in Section 1.1 (A) below (hereinafter referred to as the ("Tenant").
W I T N E S S E T 8:
ARTICLE I: GRANT AND BASIC TERMS
1.1 BASIC DATA: The following sets forth basic data hereinafter
referred to in this Lease, and, where appropriate, constitute def-
initions of the terms hereinafter listed.
A. TENANT: PORT DARE
Address: 4290 WIMBLEDON DRIVE
HARRISBURG, PA 17112
B. TRADE NAME: PETLAND
C. SHOPPING CENTER NAME: Silver Spring Commons
D. DEMISED PREMISES:
STORE'.: D-1 WITH'APPROX. 4,000 (50' X 80') SQ. FT.
... ORIGINAL TERM LENGTH: TEN (10) YRS
F. OPTION(S) & LENGTH: NONE
G. MINIMUM RENT:
YEAR(S) 1-2 ® $3,333.33 PER MO., $40,000.00 ANNUALLY
Yr.P.R(S) 3-8 O $4,000.00 PER MO., $48,000.00 ANNUALLY
YEAR(S) 9-10 ®$4,666.67 PER MO., $56,000.00 ANNUALLY
H. ESTIMATED FIRST Yr..AR PRORATA C:~iARGES AT COMMENCEMENT OF
LEASE (Su'BJECT TO ADJUSTMENT OVER TERM OF THE LEASE):
(i) Taxes: $ 183.33 per mo. $2,220.00 arn.
(ii) Insurance: $ 80.00 per mo. $ 960.00 ann.
(iii) Common Area: $ 266.67 per mo. $3,200.00 ann.
Totals $ 530.00 per mo. $6,360.00 ann.
Percentage of overall Taxes, insurance and Commen Area
Maintenance Charges ("T.I.C.") payable by Tenant: * %.
*TO BE DETERMINED ZN ACCORDANCE WITH SECTION 2.3 HEREOF
I. PERCENTAGE RENT:
Years 1-2 5% over gross
3-8 5% over gross
9-10 5% over gross
sales of $800,000.00
sales of $960,000.00
sales of $1,120,000.00
K. SECURITY DEPOSIT: $ 3,333.00
L. 1st MONTH RENT DEPOSIT: $ 3808.00 (INCLUDES T.I.C.}
M. USE CLAUSE: To be used for the sale at re*_ail of pets
and related items and for no other purpose.
N. GUARANTORS} N/A
O. LANDLORD: Silver Spring Center Limited Partnership
c/o ABS Development Comaany
333 North Main Street
Hartford, CT 06117
With rent and other payments to:
Silver Spring Center Limited Partnership
P.O. Sox 40,000 - Dept. 660
Hartford, Connecticut 06151-0660
P. REALTOR: N/A
1.2 CONSTRIICTION OF DEMISED PREMISES: Landlord agrees to
deliver a substantially completed store space on or hefore July 1,
1994; provided, however that in the event Landlord's work is
delayed or hindered by strike, casualty, lire, injunction, local
governmental action, inability to secure materials, or restraint of
law, unusual action of the elements, or any other cause beyond the
control of Landlord, then said period shall be extended to the
extent of such delays. Tenant shall have the option of cancelling
and terminating this Lease by giving written notice to Landlord
should .Landlord fail to complete Landlord's work within the
allotted time frame, including extensions. If terminated, Tenant
shall have no liability to Landlord and any Security Deposit held
by Landlord from Tenant shall be refunded. Tenant's sole remedy,
at law or in equity, for Landlord's failure to deliver a
substantially completed store space as set forth in this Section
1.2 shall be the ter;nination of the Lease and Tenar_t hereby waives
all claims for damages, including consequential and saecial
damages, resulting from Landlord's failure to deliver the store
space as aforesaid.
1.3 DEMISED PREMISES: The Landlord hereby leases to the Tenant
and the Tenant hereby leases from the Landlord, upon and subject *_o
the terms and provisions of this Lease, the premises (hereinafter
referred to as the "Demised Premises") described is Section 1.1 (D)
hereof, and as shown. on Exhibit A, hereto annexed and made a part
hereof, in the sheeping center commonly referred to as Silver
Spring Commons (*-he "Shopping Center") lccated in the Township of
Silver Sprinc, County of Cumberland, Commonwealth of P_n:,sylvzn'_a
and more accurately described on Exhibit A-i attached hereto and
made a part hereof.
Excepting and reserving to the Landlord the roof and
exterior walls of the building or buildings of which the Demised
Premises are a part and further reserving to the Landlord the right.
to place in the Demised Premises (in such manner as to reduce to a
minimum the interference with the Tenant's use of the Demised
Premises) utility lines, pipes, and the like, to serve premises
other than the Demised Premises, and to replace and maintain and
repair such utility lines, pipes and the like in, over and upon. the
Demised Premises as may have been installed in said building.
1.4 ACCEPTANCE OF DEMISED PREMISES: It is Landlord's inte_*~tion
to complete the Shopping Center as planned. However, no rights or
remedies shall accrue to Tenant from Landlord's failure to
construct or lease any other Harts of the Shoaaing Center or from
changes in occupancy, actual or pla_*uied. Landlord reserves the
right,- without Tenant's consent to (a) change the number, size,
height (including additional stories) or location of buildings and
common areas in the Shopping Center; (b) change or modify ingress
and egress routes; and (c) add additional land or buildings or both
to the Shopping Center. Tenant agrees to accent the Demised
Premises "as is", without warranty or represe_ntaticn of any kind,
express or implied, on the part of Landlord, provided Landlord
substantially completes the Demised Premises substantially in
conformity with the terms and conditions set forth on Exhibit 3
attached hereto and made a part hereof ("Landlord's Work").
1.5 TERM OF LEASE: TO HAVE AND TO HOLD the Demised Premises unto
the Tenant for the term specified in Section 1.?(E) hereof
unless sooner terminated as provided herein -commencing on the
Commencement Date as set forth in Section 2.2 hereon. If the
Commencement Date is other than the first-day--of the month., the
first year of the lease tex-m shall be extended to include such
partial month such that the first year of the lease term shall end
on the last day of the month in which the first anniversary date of
the Commencement Date occurs. The parties hereto agree, upon
demand made to the other, to execute a supplemental instrument
expressing the Commencement Date of the term he=eof when the
Commencement Date has been determined.
•~,
`•~ Wal-Mart Stores, Inc. has the right to expand into an area
which includes the Demised Premises five {5) years after the
opening of its store and at other times subsequent theneto. Should
Wal-Mart Steres, Inc. exercise its right to expand, Landlord may
terminate this lease upon six (6) months notice and Tenant agrees
to vacate the Demised Premised on or before the expiration cf said
six (6) months. All Minimum, Percer_tace and Additional Rent and
other charges due hereunder s'rall continue to accrue until such
time and Tenant shall have delivered possession of the Demised
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Premsies to Landlord in accordance with this paragraph and Section
6.3 of this Lease.
1.6 OPTION TO EXTEND: Intentionally Omitted.
ARTICLE II: RENT
2.1. ANNQAL MINIMIIM RENT: Tenant covenants and agrees to pay
Minimum Rent in monthly installments on the first day of each
month, in advance, throughout the lease tern without notice, demand
or offset to the Landlord at the address of Landlord as set forth
in Section 1.1 (O) or at such place as the Landlord shall from time
to time designate in writing. T_he first such payment is to be made
on the Commencement Date, however, if the First Month Rent Deposit
set forth in Section 1.1(L) hereof has been paid by Tenant to
Landlord as provided in Section 20.03 hereof, then such amount as
Tenant shall have deposited will be credited by Landlord against
any amouants due hereunder for Minimum Rent upon the Commencement
Date. Any fractional part of a month shall be prorated and payable
in advance. Minimum Rert is based upon store location in the
Shopping Center and a general measurement of square footage as
computed below:
(A) END STORE SPACES:
SIDE TO SIDE: Outside exterior wall to mid point of the
adjoining r_eighboriag wall.
FRONT TO REAR: From the fror_t outside wall housing the
class store front to the rear outside
wall or in the case where stores are back
to back, to the mid-point of the rear
wall .
(B) INTERIOR STORE SPACES:
SIDE TO SIDE: interior mid-point of each side wall.
FRONT TO REAR: From the front outside wall housing the
class store front to the rear outside
wall or in the case where stores are back
to back, to the mid-point of the rear
wall.
Annual Minimum Rent durinc the original lease term is as set forth
in Section l.i (G) and during any Option te=-m as set forth in
Section 1.1 (J). Tenant's obligation to pay Minimu~ Rent is
independent of all of the other covenants, conditions and
obligations of either party to this Lease.
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2.2 COMMENCEMENT OF RENT AND OTHER CHPRGES: The "Delivery of
Possession" shall be the earlier of (a) the date that Tenant.
obtains possession of the Demised Premises from Landlord, or (b)
the date that Landlord notifies Tenant in writing that the space is
substantially complete and Tenant may install his fixtures and.
equipment. The "Rent Commencement Date", which establishes the
date from which the term of the Lease is measured and upon which.
Tenant is obligated to pay Minimum Rent and Percentage Rent,.shall
be ninety (90) days after Delivery of Possession. "Substantially
complete" as used herein means the work performed by Landlord as
described in Exhibit "B" has been completed with the exception of
minor items which can be completed without material interference
with Tenant's installation of fixtures or improvements.
2.3 TAXES: From and after the Rent Comme^_cement Date, Tenant
shall pay to Landlord as Additional Rent its proportionate share,
expressed as a percentage as set forth in Section 1.1 (H), of Real
Estate Taxes, special taxes and assessments for the Shopping Center
or any part thereof (as the same may be increased or diminished
from time to time during the tern of this Lease), excluding any
taxes separately charged to or levied agzinst Tenant (which. Tenant
shall pay 100%) or any other tenant (which Tenant shall not aay aay
proportion of).
Notwithstanding anything to the cortrary contained. in
Section 1.1 (H) hereof, "Tenant's prcportionate share"' is a
fraction, the numerator of which is the cress leasable area of the
Demised Premises and the denominator of which ~_s the gross leasable
area of the Shopping Center as of the first cav_ of each applicable
tax year during the term hereof, provided that if the taxes for the
Shopping Center are increased materially because of assessment of
Tenant's improvements at a higher rate than other tenants, Tenant
agrees to pay any such excess taxes as Additional Rent. Tenant
shall pay such Additional Rent applicable to Real Estate Taxes on
a monthly basis, along with the monthly Minimum Rent. Initially,
such monthly payments shall be as set forth in Section l.i(H).
Tenant's proportionate share of Real Estate Taxes shall thereafter
be estimated by Landlord on an annual basis for each calendar year
ending on December 31. Should the actua'_ coats of Real Estate
Taxes be less than each tenant paid, the amount overpaid by the
Tenant will be credited towards such cost=_ t r the first month of
the next year or if the Tenant is terninati.c, a refund shall be
made provided no other charges are outsta:d_,g by Tenant. If Real
Estate Taxes are more than Landlord's e=_timate, Tenant shall pay
such excess within thirty (30) days of r=_ceiving a detailed
statement from Landlord. In the event Tenant does not make said
payment monthly, or reimburse Landlord at th=_ end of any calendar
year in the event of a deficiency, as aforesaid, Tenant shall be
in default of this Lease. Landlord, at La^dlord's option, may
obtain separate taxable. status for the Tema ed Premises, and in
such event, Tenant shall pay 100% of such .axes as Additional Rent.
Additionally, with r=_spect to taxes:
~S'
(A) R2GXT TO CONTEST ASSESSMENTS: Landlord may contest any
and all Real Estate Taxes. The cost of any such contest
shall be paid as Additional Rent in the same
proportionate share as the Real Estate Taxes are paid
and any refund or recovery shall be shared in the same
proportionate manner. Tenant shall have no right to
contest assessments without the prior written consent of
Landlord.
(S) REAL ESTATE TAX: Real Estate Tax means: (i) any fee,
license fee, license tax, business license fee,
commercial rental tax levy, charge assessment, penalty
or tax imposed by any taxing or judicial authority
against the Shopping Center or land uaon which the
Shopping Center is located; (ii} any tax imposed uaon'
the Shopping Center by any state, county or local
governmental authority including without limitation all
school district taxes; (iii) any tax on the Landlord's
right to receive, or the receipt of, rent or income from
the Shopping Center or against Lardlord's business of
leasing the Shopping Center; (iv) any tax or charge for
fire protection, streets, sidewalks, road maintenance,
refuse or other services provided to the Shopping Center
by any government agency; (v) any tax imposed upon this
transaction, or based upon a reassessment of the
Shopping Center due to a change in ownership or transfer
of all or part of Landlord's interest in the Shopping
Center; and (vi) any charge or fee replacing, in whole
or in part, any tax previously included within the
definition of Real Estate Tax.
2.4 COMMON AREA MAINTENANCE CHARGES: Commencing upon the
Delivery of Possession and thereafter on the first of each month
Tenant will pay Landlord, along with the monthly Minimum Rent
payment, as Additional Rent, one-twelfth (1/12) of Tenant's
proportionate share of the annual common area operating costs, as
hereinafter defined. Initially, such monthly payment shall be as
set forth in Section 1.1(H). However, if Tenant's use of the
Demised Premises is directly responsible for a material increase in
the Shopping Center charges for common area operating costs, Tenant
shall be solely responsible for such excess cost. The common area
operating costs shall thereafter be estimated by Landlord on ar.
annual basis for each calendar year ending on December 31. Should
the actual common area operating cost be less than each tenar_t
paid, the amount overpaid by the Tenant will be credited towards
common area operating costs for the first month of the next year or
if the Tenant is terminating, a refund s::all be made provided no
other charges are outstanding by Tenant. If common ar_a operating
COStS are more than Landlord's est=mate, Tenant sr.all pay such
excess within thirty (-s 0) days cf receivinc a detailed statement
from Landlord. Failure to pay shall be a de'_aL'_t under this Lzase.
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2.5 ADJ[TSTMENT OF MINIMIIM RENT: Intentionally Omitted
2.6 PERCENTAGE RENT: In addition to the payment of a fixed
Minimum Rent, Tenant shall pay, as rent hereunder, a percentage (as
set forth in Section 1.1 (I) or l.i(J) hereof, as the case may be)
of Tenant's Gross Sales, as hereinafter defined, for each full or
partial lease year (including any lease renewal periods) as
Percentage Rent. In order to track Tenant's sales and monitor the
health of the Shopping Center, Tenant shall supply Landlord, within
ten (10) days after the close of each month either (1) a duplicate
of the business sales report sent to the State Tax Commission, if
applicable or (2} a statement reciting Tenant's Gross Sales for
-- such month, in the form of Exhibit C attached hereto, certified by
Tenant or Tenant's agent as being correct. Such sales shall remain
confidential to Landlord, Landlord's accountant/property manager,
and Landlord's lenders and potential purchasers of the Shopping
Center. The term "lease year" as used herein, shall refer to each
calendar year during the lease term, but for the first and last
year of the term shall mean the partial year. For such partial
year, the Percentage. Rent breakpoint shall be computed on a pro
rata basis. Should actual Gross Sales exceed the pro-rated
Percentage Rent breakpoint, the difference shall be multiplied by
the percent figure set forth in Section 1.1 (I), or Section 1.1(J),
as the case may be, and paid to Landlord as Percentage Rent.
The Tenant agrees, without notice or demand from the
Landlord, within thirty (30) days after the end of each lease year
or partial lease year, to cause a statement of the Gross Sales of
the Tenant made at, in, on and/or from the Demised Premises for
such lease y=_ar to be certified by an independent certified public
accountant, or by the Chief Financial Officer of the Tenant and a
copy of such statement certified by such accountant shall be
delivered by the Tenant to the Landlord within such thirty-day
period, and such statement shall be accompanied by a check of the
Tenant for the Percentage Rent, if any, payable with respect to
such prior lease year. Tenant's obligation to pay Percentage Rent
is independent of all of the other covenants, conditions and
obligations of either party to this Lease.
All statements deliverable by the Tenant to the Landlord
under this Lease shall be delivered to the place where rent is then
payable, or to such other place or places as the Landlord may from
time to time direct by notice to the Tenant.
2.7 GROSS SALES: As defined in this Lease, "Gross Sales" shall
mean the acgregate of all gross receipts of Tenant, subtenants or
Sublessees, concessionaires or licensees and any business conducted
on or at the Demised Premises or through outside sales agents,
regardless of whe*_her such receipts be evidenced by check, credit,
charge account, exchange or otherwise withcut rese roe or deduction
for inability or failure to collect (but nothi.^:e contained in this
Section 2.7 shall be construed as grantinc Tenant the right to
assign or sublet the Demised Premises or to utilize the Demised
Premises for any use not otherwise allowable under other provisions
of this Lease). Gross Sales shall include those amounts received
from any transaction, including, but not limited to, the amounts
received from the sale or rental of goods, wares, merchandise and
shelf and/or floor space, gift certificates and for services and
repairs performed on or from the Demised Premises, together with.
the amount of all orders taken or received at the Demised Premises,
whether such orders be filled therefrom or elsewhere as well as all.
receipts which Tenant in the normal and customary course of its
operations would credit or attribute to its business on the Demised
Premises, and shall include sales made by or from vending devices
in the Demised Premises (but nothing contained herein shall give.
Tenant the right to install mechanical or vending machines in the
Demised Premises). Gross Sales shall also include, but not be
limited to, all deposits not refunded to purchasers and all sales.
to employees or agents of Tenant.
Gross Sales shall not include (or if included shall be
deducted therefrom) cash or credit refunds upon gross receipts
where the merchandise sold or some part of it is returned by the
purchaser to the Tenant; and the amount of any sales, use, ar gross
receipts tax imposed by any Federal, state, municipal or other
governmental authority directly on sales and collected from
customers, provided that the amount thereof is billed separately to
the customer and is required to be paid by Tenant to such Govern-
mental authority. The sales price of merchandise returned by
customers for exchange shall be include3 in Gross Sales. No
franchise or capital stock tax and no inheritance, income,
occupation, or similar tax or license fee based upon income, sales
or profits, as such, shall be deducted from Gross Sales.
2.8 RECORD REEP2NG: For the purpose of ascertaining the amount
payable as Percentage Rent, Tenant agrees to prepare, maintain, and
preserve on the Demised Premises, for a period of not less than
three (3) years following the end of each lease year or partial
lease year; all pertinent original sales records showing
inventories and receipts of merchandise at the Demised ?remises;
and the gross income, sales and occupation tax returns with respect
to said lease years and partial lease years for Tenant and all
other persons or firms conducting any business upon the Demised
Premises. Pertinent original sales records shall include: (a)
cash register tapes, including tapes from temporary registers; {b)
serially numbered sales slips; (c} the originals of all mail orders
at and to the Demised Premises; (d) the original records of all
telephone orders at and to the Demised Premises; (e) settlement
report sheets of transactions with subtenants, concessionaires and
licensees; (f) the original records showing that merchandise
returned by customers was purchased at the Demised Premises by suer.
customers; (g) memorandum receipts or other records of mercandise
taken out on approval; (h) such other sales records, if a^.y, which
would normally be examined by an independent auditor pcrsla^_ to
-a-
,,
generally accepted auditing standards in performing an audit o*"
Tenant's sales; and (i) the records specified in (a) to (h) above
from subtenants, assignees, concessionaires or licenses. In the
event of any dispute as to the amount of Percentage Rent due,
Tenant agrees to keen all the foregoing records until such dispute
is resolved.
2:9 AIIDIT: The acceptance by Landlord of payments of Percentage
Rent shall be without prejudice to Landlord's right to an examina-
tion of Tenant's books and records of its Gross Sales and
inventories of merchandise on the Demised Premises for the purpose
of verification. Landlord, its accountants or other represent-
atives, may at any reasonable time, upon ten (10) days prior
written notice to Tenant, cause a comnle*_e audit to be made of
Tenant's entire business affairs, tax returns and records relating
to the Demised Fremises for the period covered by any statement
issued by Tenant. If such audit shall disclose a liability for rent
of two percent (2%} or more in excess of the rentals heretofore
computed and paid by Tenant for such period, or if Tenant's records
are not adequate or the records are not made available within ten
(10) days after written notice to Tenant to pernit said accountants
to dete:-mine Gross Sales, Tenant shall promptly pay to Landlord the
reasonable cost of said audit in addition to the deficiency and
Late Charge, which deficiency and Late Charee shall be payable in
any event, and, ir_ the event of willful underreporting,in addition
to all other remedies available at law or in equity or pursuant to
other provisions of this Lease, Landlord at Landlord's option may
te:-minate this Lease upon five (5) days notice to Tenant of
Landlord's election to do so.
Any information obtained by Landlor3 as a result of such
audi*_ shall not be made public except to the extent necessary to
enforce this Lease and to provide information 'to Landlord's
lender(s) or potential purchasers of the Shopping Center.
2.10 LATE CHARGE: If Tenant fails to pay any Additional Rent,
Minimum Rent, or Percentage Rent within ten (10) days of the due
date, Tenant shall pay to Landlord a "Late Charge" of five cents
($0.05) for each dollar so overdue to defray the cost of collection
and administration.
2.11 DEFINITION OF ADDITIONAL RENT: Without limitinc any other
provision of this Lease, it is expressly understood and agreed that
all Percentage Rent, the Tenant's proportionate share of Taxes,
Common. Area Maintenance Charges and all other charges which the
Tenant is retained to pay hereunder, including, withaut limitation,
the Promotional Charge, together with all interest and penalties
that may accrue thereon, shall be deemed to be Additional (but not
Minimum) Rent, and in the event of non-payment thereof by the
T=_nant, the Landlord shall have all of the rights and remedies with
respect thereto as would accrue to the Landicrd for non-payment of
Mini~;,um Rent. Tenant's obligation tc pay Additional Rent is
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independent of all of the other covenants, conditions and
obligations of either party to this Lease.
ARTICLE 2II: IISE OF DEMISED PREMISES
3.1 TENANT'S IISE: Tenant shall use the Demised Premises solely
for the purposes set forth in Section 1.1 (M) and for no other
business or purpose without prior consent from Landlord.
(A) No auction, fire or bankruptcy sales may be conducted
within the Demised Premises without the previous consent
of the Landlord.
(B) The Tenant shall not use the malls or sidewalks adjacent
to the Demised Premises or the recessed vestibules, if
any, of the Demised Premises for business purposes
(including, without limitation, the distribution of
handbills or advertising of any type) without the
previous consent of the Landlord.
(C) The Tenant shall keep the display windows of the Demised
Premises clean and shall keep the same electrically
lighted during such periods of time as the Shonoing
Center shall be oven and, in addition, during such other
periods of time as shall be determined by the Landlord,
provided windows throughout a major portion of the
Shopping Center are kept lighted during such additional
periods, and for this purpose shall install and maintain
a mechanical time-clock.
(D) The Tenant shall at all times keep the Demised Premises
fully and adequately stocked and fixtured. The Tenant
shall devote the maximum possible floor area of the
Demised Premises to selling space (consistent with the
permitted uses hereunder), and shall not use any portion
of the Demised Premises for storage or other services,
except as is consistent with its operations in the
Demised Premises.
(E) The Tenant shall at all times fully and adequately heat
and/or air-condition (as the circumstances require) the
Demised Premises.
(F) The Tenant agrees that it and its employees and others
connected with the Tenant's operations at the Demised
Premises will abide by all reasonable rules and
regulations from time to time established by the
Landlord by written notice to the Tenant with respect tc
such Shopping Center, a current copy of w'rich are
attached hereto as Exhibit D, but which are subjec*_ to
chance at Landlord's discretion.
3.2 CONTINUOIIS OPERATION: Tenant shall cortiauously operate anc
keep oven to th=_ public the entire Demised ?remises in cool fait:
fGr the duratiG^ O. the '_ease ter:. from Monday thrOllC71 Saturea:
- 1'J'
during the hours o£ 10:DO AM to 6:00 PM, and such other hours as a
majority of the other tenants of the Shopping Center shall remain
open. Tenar_t will carry a complete stock of merchandise, maintain
an adequate staff including a qualified store manager headquartered
at the Demised Premises to accommodate customers and at all times
promote the business through advertising and display of merchandise
so as to produce the maximum Gross Sales possible. Tenant may open
at earlier hours or close at a later time and open on Sunday,
providing such opening is not in violation of any local govern-
mental ordinance or law, Tenant may also close on major nationally
recognized religious holidays and for periodic inventory. Lt is
important to the success of a Shopping Center that all tenants have
uniform days and hours of operation. Tenant acknowledges that. this
obligation is a material and significant inducement to the Landlord
to enter into this Lease and Tenant agrees to abide by the hours
and days of opening specified herein or be in violation of this
Lease.
3.3 RADIIIS OF OPERATION: Zf Tenant, or any other person, firm or
corporation which controls or is controlled by Tenant, or any
franchise or licensee of any of them, opens a competing or similar
business, either directly or indirectly operating within a radius
of two (2) miles £rom the Shopping Center, during the term of this
Lease, the competing or similar business's Gross Sales (as defined
in this Lease) shall be included in the Gross Sales made from the
Demised Premises for purposes o£ computing Percentage Rent due
hereunder. This radius clause does not apply to businesses of
Tenant currently open and in operation within said radius at the
time this Lease is executed.
3.4 IITILITIES: Tenant agrees to nay for Tenant's use of all of
its reaaireme.^.ts for utilities, including but not limited to,
electricity, gas, sewer, heat, water and all other utilities and
taxes or charges for such utility services which are used by or
attributable to Tenant's Demised Premises £rom the date of Delivery
of Possession of the Demised Premises by Landlord to Tenant. Where
Landlord furnishes one or more of the utility services, Tenant
shall accent and use same, paying all reasonable charges therefor.
Landlord's charges shall not exceed the rates charged by
local uti li .y companies to retail customers for the same or similar
services. In no event will Landlord be liable for an interruption
or failure '_^. the supply of any such utilities or services supplied
by Landlord because of repairs or improvements or for any cause
beyond Landlord's control.
3.5 SIGNS: It is Landlord's desire to create a Shopping Center
environment that is modern and upscale. Towards this end, Landlord
has established a uniform tenant sicn criteria, (see Exhibit "E"),
that will comcliment and enhance the lock of the Shopping Center.
Tenant will pct, without first obtaining Landlord's consent, place
on any exterior door, wall, window, roof or fascia of the Demised
-il-
Premises, say sign, awning, canopy or advertisement or other such
matttr including decorations and light attractions. Approved signs
and approve3 advertisements shall be installed at Tenant's expense
and mainta±ned at all times in a good condition. If Tenant
installs any sign not previously approved by Landlord that does
not meet Landlcrd's sign criteria., Landlord shall have the
authority, without liability, to remove and score the alga, at
Tenant's sole expense and ac Tenant's risk, if Tenant fails to
voluntarily zemove the sign within seven (7) days after receiving
written notification from Landlord of the violation. pxgenses
incurred by Landlord for removing and storing Tenant's sign shall
be immediately paid by Te_zant as Additional Rent. In addition,
Landlord reserves *_he right at its expense to temporarily remove
any or all of Tenant'a signs during any period when Landlord
repairs, restores, constructs or renovates the Demised Premises or
other premises within the Shopping Center which adjoin the. Demised
Premises, upon giving Tenant seven (7) days advance written
notification.
3.6 SBWSFS DISCSA$4S LIIfITAT~QN: Tenant shall be entitled to
discharge sewage from the Demised Premises into the sanitary sewer
system to be constructed by Landlord for the benefit of the
Shopping Center within which the Demised Premises are located, but
Tenant covenants and agrees that such discharge (whether by Tenant
or any other person or entity possessing or using the Demised
Fremiees) shall not excee3 an average of y,~Q gallons per day
tthe "Reserved Capacity"). The average number of gallons per day
of sewage dischazged from the Demised Premises for each calcndar
year will be based on the average daily flow during the three (3)
consecutive mcntha in any calendar year with the highest volume of
sewage flow from the Demised Premises. "Average daily flow^ shall
be determined from the water consumption of the Demised Premises as
evidenced by meter readings taken from the water meter monitoring
water service to the Demised Premises, but excluding any meter
readings for water used in fire sprinkler systems, fire hydrants,
and/or site landscaping irrigation provided that the aforesaid
excluded uses are separately metered or submetered. Or.e gallor. of
water consumption shall ecual one gallon of sewage discharge. The
discharge of sewage fzom the Demised Premises in excess of the
Reserved Capaci~; a4:~11 constitute a default by Tenant hereunder.
In the event of a default, Landlord shall have the right to pursue
all remedies at law and/or in equity, including the right to obtain
an injunction enjoining Tenant from discharging sewage from the
Demised Premises in excess o£ the Reserved Capacity. Tenant shall
indemnify and hold Landlord harmless fzom a.^.y and all claims,
liabilities and costs (including reasonable at*_orneys fe_sl made
against or ircurzed by Landlord as a zeaulc, directly or
indirectly, of the discharge of a quantity of sewage from the
Demised ?remises in excess of the Reserved Capacity.
ARTSCLS 1V: s:Ot~lON AR=A3
4.1 pBFINITION OP COD¢i0H ARSAB: Commcn ar-as are all areas,
space, eeuipment, and eeecial aersices provided by Landlord for
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common or joint use and benefit of the Tenant and other tenants of
the Shopping Center, their customers, employees, agents and
invitees. This includes without limitation: roofs, walls, parking
areas, access roads, driveways, sidewalks, ramps, stairways, wash
rooms, fountains, public phones, pylon and/or other common area
signs, shelters, lighting fixtures and equipment, security
facilities, and the cost of maintaining these areas for the benefit
of the Shopping Center.
4.2 COl~SON AREA OPERATING COST: Common area operating costs
include all costs and expenses of every kind and nature paid or
incurred by the Landlord (including reasonable and appropriate
reserves) in operating, managing, equipping, policing (if and to
the extent provided by the Landlord), lighting, repairing,
replacing and maintaining all parking facilities (including any
parking structure subsequently installed 3n the Shopping Center for
the common use of customers and/or employees of the Shopping
Center), enclosed malls (including the heating and air conditioning
thereof), utilities and facilities serving the Shopping Center
(including off-site utilities and facilities such as retention
areas and drainage facilities, all taxes, assessments, costs and
other expenses related theieto), and all other common areas of the
Shopping Center (including, but without limitation, all
landscaping and gardening}, and the fees, costs or expenses, if
any, required for the maintenance and preservation of env rights
~-arising under any reciprocal easement agreement (".~") affecting
the Shopping Center, or to fulfill any obligations arising under
such an ~. Such costs and expenses shall likewise include (but
shall not be limited to3 water and sewer charges; utility
system installation charges and assessments; costs of ail roof and
other maintenance, repairs and replacements performed by the
Landlord; costs of the installation, operation, maintenance, repair
and replacement of any energy management system; costs of the
operation, maintenance, repair and replacement of any escalators
and elevators; workers' compensation, public liability, rent
interruption, fire insurance, extended coverage and all other._.._
perils coverage, plus all endorsements and other insurance
coverages deemed reasonable and necessary by Landlord; wages,
unemployment taxes, social security taxes, and personal property
taxes ar_d assessments; fees for required licenses and permits;
supplies; operation of loudspeakers and any other equipment
supplying music to the common areas; reasonable depreciation of
equipment used in the operation or maintenance of the common areas;
and an administrative fee equal to the fifteen percent (1S%) of
the total costs and expenses of operating, managinc and maintaining
the Shopping Center.
4.3 CONTROL OF COMMON AREA: The common areas as defined in this
Lease shall be under tie exclusive contrcl and management cf t.:e
Landlord who shall have the exclusive right to establish, revoke,
modify and enforc=_ rules and reculations governing the commor.
areas. Tenant shall make no use cf *_he Common Area except fcr non-
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exclusive parking in designated areas and for ingress and egress
without the .prior consent of Landlord.
ARTICLE V: CONSTRUCTION AND ALTERATIONS
5.1 LANDLORD'S CONSTRUCTION: T_he construction work required to
be done on the Demised Premises by Landlord prior to the Delivery
of .Possession shall be as set forth in Exhibit "B".
5.2 TENANT'S ALTERATIONS: Tenant agrees, upon Delivery of
Possession of the Demised Premises, that it will with due diligence
proceed to obtain a building permit a_nd undertake such construction.
and renovation work, install such stock, fixtures and equipment and
to perform such other work as shall be necessary or appropriate in
order to prepare the Demised Premises for the opening of business
as soon thereafter as possible but in no event later than ninety
(90) days after Delivery of Possession of the Demised Premises.
In the event that Tenant does not oven the Demised Premises
for the conduct of its business within sixty (60) days after the
Commencement Date, Landlord shall have, in addition to any and all
remedies herein provided, the right to collect not only the Minimum
Rent herein provided, but supplementary rent at the rate of
one-fifteenth (1/15th) of the monthly Minimum Rent per day for each
and every day that Tenant shall fail to commence to do business as
herein provided. Said Additional Rent shall be Zaemed to be in
lieu of any Percentage Rent that might have been earned during such
- period of Tenant's failure to open. Any period of time during
which said supplementary rent is due and payabl>_ in lieu of
Percentage Rent shall be excluded from the applicable lease year
and said lease year shall be treated as a partial lease year for
purposes of the computation of the Percentage Rert breakpoint and
Percentage Rent. Further, in the event Tenant dogs not open the
Demised Premises for the conduct of its business within sixty (60)
days after the Commencement Date Landlord shall have the right at
any time thereafter to terminate this Lease by giving Tenant
written notice of such termination, whereupon this Lease shall be
terminated, except for Landlord's rights and remedies upon
termination as .herein provided,
In addition, Tenant shall not, without Landlord's prior
consent, either at the inception or later in the lease term,
commence any alterations or modifications without first complying
with Exhibit F attached hereto and without first providing Landlord
a copy of Tenant's plans, and conies of any and all governmental
permits, aparovals and authorizations require3 in connection with
such work.
In matters concerning chances to the external appearance of
the Demised Premises or that would alt=_r the design and/or tae
structural integrity of the Shopping Center, or changes to the
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interior structural soundness of the Demised Premises, consent
shall .be at Landlord's sole discretion.
Alterations and construction plans consented to by Landlord
shall be completed at Tenant's sole expense and shall be performed,
in a good workmanlike manner in compliance with all governmental
requirements, and with all of the terms of this Lease, at such
times as to-cause a minimum of interference with other construction
of Landlord or ongoing, operating businesses in tine Shopping
Center. Tenant agrees to indemnify and hold Landlord harmless
against any loss, liability or damage resulting from such work.
Tenant shall provide its own trash containers for construction
debris and use side/service entrances where possible.
5.3 BIIILDERS RISK: Tenant shall also maintain builders "all.
risk", fire and comprehensive general liability, workman's
compensation and employer liability insurance with respect to any
and all of Tenant's construction and alteration activities, naming
Landlor$ and Landlord's mortgagees as additional insureds, in such
amounts and on such terms as are satisfactory to Landlord and
customary for like construction. Prior to commencing any
construction work, fienant shall provide Landlord with copies of
certificate(s) reflecting such insurance coverage.
5.4 'fiENANT'S DISCHARGE OF LIENS: Tenant shall promptly pay its
contractor and materialmen for all work done upon the Demised
Premises. Nothing in this Lease shall be construed to authorize
Tenant or others dealing with Tenant, to charge the rents of the
Demised Premises or the interest of Landlord in the estate of the
Demise3 Premises with a mechanic's lien or encumbrance of any kind,
and under no circumstance shall Tenant be construed to be the
agent, employee or representative of Landlord in completing
Tenant's work. All such work shall be for the immediate use and
benefit of Tenant and not Landlord. Tenant shall, upon request,
provide Landlord lien waivers, and should any such lien be asserted
or filed, Tenant shall immediately discharge of record (either by
payment or by filing of the necessary bond, or cther.~ise) the same
within ten (10) days. Sf Tenant fails to remove said lien within
ten (10) days, Landlor3 may at its option, remove the lien by
paying the claim, without investigatir_g the validity thereof, and
Tenant shall pay Landlord upon demand the amount paid by Landlord
to remove the lien, including Landlord's tests and expenses.
Tenant's failure to cause the lien to be released of record or to
reimburse Landlord within five (5) days of Landlord's request for
reimbursement shall be a default of Tenant's Lease.
Landlord shall have the right, in its sole discretion, to
recuire Tenant, or its contractor, to ohtain a performance and
payment bond in an amount and with a surety company satisfactory to
Landlord. If the laws of the state provide for filing a statutory
bond to eliminate attachment of mechanic's or materialmen's liens,
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~,~,
Tenant. shall require that its contractor (or Tenant shall itself)
file a statutory bond prior to initiation of construction.
ARTICLE VI: MAINTENANCE AND REPAIRS
6.1 LANDLORD'S OBLIGATIONS: Except as provided for in Article
XII, Destruction, and Article XIII, Eminent Domain., Landlord shall
keep and maintain the foundation and exterior walls, the cost of
which shall be included in common area operating costs, except when
such repairs were necessitated from Tenant's actions or that of its
officers, agents, customers or employees.
6.2 TENANT'S OBLIGATIONS:
A. Tenant shall be responsible at its own expense for
keeping the Demised Premises neat and clean and in good order,
condition and repair at all times from the date of Delivery of
Possession of the Demised Premises, aad continuously thereafter
until the end of the term hereof, including, but without
limitation, replacement and restoration as required of the
following:
1. The exterior and interior portion of all doors and door
checks, door locks, emergency hardware openers, and door
handles;
2. Windows, window molding, plate glass, store fronts,
glass door panels, and showcases surrounding the
Demised Premises;
3. All plumbing and sewage facilities within the Demised
Premises, including free flow to the utility owned sewer
line, including water meters;
4. Heating and air conditioning systems and equipment,
sprinkler systems and electrical systems (after
Landlord's Certificate of Occupancy has stated such
systems are properly functioning) including electrical
meters and wiring;
5. Floors and floor covering, walls and wall ccverinc,
ceiling tiles and ceiling lights (including bulbs and
coverings);
6. Tenant fixtures and all installations made by Tenant;
7. Repairs to the Demised Premises due to illegal ent±y;
and
8. Maintain Tenant's sign(s) is cool repair as required in
Section 3.5.
3. Tenant shall contract with a qualified se ^~ice conpany
fOr reasonable mai.T'itenanCe Of the hPaLl;.g, Vent'_1atlOn and alr
COndlt_OP.. P.C eCLipment dnd fll_.n2s)'1 La,iClCrd a CODV O~ ~.::e COn~raCt
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within ten (IO) days after opening and any subsequent contracts
upon cancellation or expiration of the original contract..
C. Cleanliness is important in Shopping Centers as it
encourages repeat customers. Tenant shall therefore keep and
maintain the Demised Premises in a.clean, safe, sanitary and
offensive-odor free condition and shall abide by all rules and
regulations of governmental agencies and operate in comnliaace with
all requirements of law, statute, ordinance, regulation, rule or
other governmental authority affecting the Demised Premises and all
appurtenances thereto. Tenant shall be responsible for trash
storage and removal through rental of commercial dumpsters.
Landlord will provide locations in the Shopping Center for
placement of these dumpsters.
D. If Tenant refuses or neglects to commence and to
complete repairs, Landlord may, at Landlord's option, place Tenant
in default of the Lease and make said repairs and Tenant shall pay
the cost thereof plus any administrative charges, as Additional
Rent upon demand.
6.3 SIIRRENDER OF DEMISED P;RE23ISES: At the expiration of the
tenancy, Tenant shall peaceably surrender the Demised Premises in
the same condition as received by it on the Delivery of Possession,
reasonable wear and tear Expected. All keys to the Demised
Premises and lock combinations to a_ny safes or vaults which may be
in the Demised Premises shall also be turned over to Landlord at
the same address used for rent payment. Any and all alterations,
additions, improvements, and fixtures which may be made or
installed by either the Landlord or the Tenant upon the Demised
Premises and which in any manner are attached to the floors, walls
or ceilings (including, without limitation, any linoleum or other
floor covering of similar character which may be cemented or
otherwise adhesively affixed to the floor, and any heating,
ventilating andjor air-conditioning equipment} shall remain upon
the Demise3 Premises, and at the termination of this lease shall
be surrendered with the Demised Premises as a part thereof without
disturbance, molestation or injury. However, the usual trade
fixtures and furniture which may be installed in the Demise3
Premises prior to or during the term hereof .at the cost of the
Tenant may be remov>d by the Tenant from the Demised Premises upon
the termination of this Lease if, but only if, the Tenant is not
then in default hereunder. Further, Landlord may require Tenant
to remove tr=_de fixtures and any other alterations, installations
or improvements during the last thirty (30) days of its tenancy by
giving sixty (60) days written notice to Tenant. Tenant shall
repair any and all damage caused to the Demised Premises resulting
from or caused by removal of Tenant's fixtures and for any of
Tenant's alterations, installations or improvements. Tenant's
obligation to perform this ccvenant shall survive the expiration.
of this Lease. In no event shall the Tenant be entitled to remove
any heatinc, ventilating or air-conditioning equipment. Any items
remaining in the Demised Premises on the termination date snail be
deemed abandoned and shall become the property of Landlord and
Landlord mar dispose of same without iia'cility. Any cost to
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remove fixtures or repair damage caused by Tenant's vacating shall
be Tenant's expense and Landlord may use Tenant's Security Deposit
to help defray such expenses but the Security Deposit shall not
constitute satisfaction of the cost, should such cost exceed the
amount of the Security Deposit.
ARTICLE VII: INSURANCE AND INDEMNITY
7.1 CASUALTY INSDRANCE: The Tenant also agrees that it shall.
continuously keep its fixtures, merchandise, equipment and other
personal property from time to time located in, on or about the
Demised Premises, and all leasehold improvements to the Demised
Premises insured by reputable, duly licensed insurance companies
against loss or damage by fire with the usual extended coverage
endorsements in amounts at least equal to the full replacement cost
thereof. During the term of this Lease, the proceeds from any such
policy of insurance shall be used for the repair or replacement of
the fixtures and equipment so insured. Prior to the Commencement
Dat=_, and no less often than annually thereafter, and at any other
time upon the request of the Lardlord, the Tenant shall furnish to
the Landlord evidence of such continuous insurance coverage
satisfactory to the Landlord. It is understood and agreed that the
Tenant assumes all risk of damage to its own property arising from
any cause whatsoever, including, without limitation, loss by theft
or otherwise.
7.2 WAIVER OF SUBROGATION: insofar as and to tine extent that
the followine provision may be effective without invalidating or
maki:.g it impossible to secure insurance coverage obtainable from
responsible insurance companies doing business in the Commonwealth
of Pennsylvania (even though extra premium may result therefrom),
the Landlord gad the Tenant mutually agree that with respect to any
loss which is covered by insurance then being carried by them,
respectively, the one carrying such insurance and suffering said
loss releases the other of and from any and all claims with respect
to such loss to the full extent, but only to the extent, of such
insurance coverage; and they further mutually agree that their
respective insurance companies shall have no right of su'orogation
against the other on account thereof. In the event that any
additional premium is payable by either party as a result of this
provision, the other party shall reimburse the party paying such
premium the amount of such extra premium. The releases herein
contained shall not apply to any loss or damage occasioned by the
willful acts of either of the parties hereto.
7.3 INCREASE IN FIRE INSURANCE PREMIUMS: Tenant agrees not to
keep, use, sell or of`_er for sale, in or upon the Demised Premises,
any articles or goods which may be prohibited by the standard form
of fire insurance policy or will otherwise increase the rate of
fire or other insurance on the Demised Premises. Tenant acrees to
pay upon demand any such increase in premium for any insurance
whic:~ may be carried by Landlord on said Demised Premises, or the
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I
Shopping Center of which the same are a Bart, resulting from the
use of the Demised Premises by Tenant, whether or not Landlord has
consented to such use.
7.4 LIABILITY INSURANCE: Tenant shall, during the entire te_*m
hereof, keep in full force and effect a policy of public liability
and property damage insurance with respect to the Demised Premises
and the business operated by Tenant and permitted subtenants of
Tenant in the Demised Premises in which the combined single limits
of coverage shall not be less than $1,000,000.00 per occurrence.
The limits of coverage shall be increased from time to time upon
Landlord's request, in accordance with shopping center management
practices then prevailing in the area of the Shopping Center. The
policy shall be in form approved by Landlord, shall name Landlord
(and such other persons as are in privity of estate with the
Landlord as may be set out in notice from time to time) and Tenant
as the insureds, and shall contain a clause that the insurer will
not cancel, materially modify or fail to renew the insurance
without first giving Landlord thirty (30) days prior written
notice. The insurance policy shall be written by an insurance
company approved by Landlord, authorised to do business in the
Commonwealth of Pennsylvania and having a policyholders' rating of
no less than "A" in the most current edition of Host's Insurance
Reports. A copy of the policy or a certificate of insurance shall
be delivered to Landlord. The Dolicy shall insure Tenant's
performance of the indemr_ity provisions of this Lease.
7.5 RENTAL INTERRUPTION INSURANCE: Landlord may, in Landlord's
sole discretion, maintain a policy of rental intern:ption
insurance, the cost of which shall be Dart of common area operating
costs.
7.6 INDEMNIFICATION OF LANDLORD: Tenant will protect,
indemnify, defend and save harmless Landlord, its agents and
servants, from and against any and all claims, actions, damages,
suits, judgements, decrees, orders, liability and expense
(including all costs, expenses and liabilities incurred in or in
connection with any such claim or proceeding, and attorney fees) in
connection with loss of life, bodily injury, personal injury and/or
damage to property of whatever kind or character, howsoever caused,
arising from or out of any occurrence in, upon or about the Demised
Premises, or in the occuaarcy or use by Tenant of the Demised
Premises or any part thereof, or occasioned wholly or in part by
any act or omission. of Tenant, its agents, contractors, licensees,
employees, servants, sublessees, or concessionaires, notwit:^.stand-
ing any possible necligence (whether sole, concurrent or otherwise)
on the Dart of Landlord, its agents, contractors, employees or
servants.
7.7 PLATE GLASS: Tenant shall replac= at its own expense any
and all plate and of her glass in and about the Demised Premises
damaged or broken _`rom any cause whatsoever.
7.8 LANDLORD'S MORTGAGEE: Wherever herein Tenant is required to
add ~andiord as an _nsured to any pc?iCy c~ i.^.sura^ce. ~o _^sur=_
__c_
Landlord, or to provide a certificate or other proof of insurance
or a notice to Landlord, Tenant must treat any mortgagee of
Landlord that Landlord has notified Tenant of in a like manner.
ARTICLE VIII: SUBORDINATION NOTICE ESTOPPEL AND ATTORNMENT
8.1 SUBORDINATION; Landlord shall have the right to transfer,
mortgage, assign, pledge, sell and leaseback, convey or otherwise
encumber in whole or in part, the Demised Premises, the Shopping
Center, this Lease and all rights of Landlord existing and to
exist, and rents and amounts payable to it under the provisions
hereof; and nothing herein contained shall limit or restrict any
such right, and the rights of the Tenant under this Lease shall be
subject and subordinate to aII instruments executed and to be
executed in connection with the exercise of any such right of the
Landlord, including, but not limited to, any REA affecting the
Demised Premises and the Shopping Center and the lien of any
mortgage, deed of trust or security agreement now or hereafter
placed upon the Demised Premises and the 5hopging Center and to alt
renewals, modifications, consolidations, participants, replace-
ments and extensions thereof.
Said subordination shall not require the agreement or
consent of Tenant, but Tenant covenants and agrees, if requested,
to execute and deliver upon demand such further instruments
subordinating this Lease to~the lien of any such mortgage, deed of
tryst, security agreement or sale and leaseback as shall be
requested by the Landlord and/or any mortgagee, proposed
mortgagee, holder of any security agreement, or purchaser or such
other party and Tenant hereby irrevocably appoints the Landlord as
its attorney-in-fact to execute and deliver any such instrument for
and in the name of the Tenant. Notwithstanding arythirg se*_ out in
this Lease to the contrary, in the evert the holder of any mortgage
or deed of trust elects to have tisis Lease superior Co its mortgage
or deed of trust, then, upon Tenant being notified to that effect
by such encumbrance holder, this Lease shall be deemed prior *_o the
lien of said mortgage or deed of trust, whether this Lease is
adopted prior to or subsequent to the 'date of said mortgage or deed
of trust.
8,2 NOTICE TO LANDLORD: The Landlord shall in no event be in
default in the performance of ary of the Landlord's obligations
hereunder unless and until the Lar_dlor3 shall have failed to
perforn such obligations within thirty (30) days, or such
additional time as is reasonably required to correct any such
default, after notice by the Tenant to the Landlord properly
specifying wherein the Landlord has failed to perform such
obligation.
Further, if the holder of a mortgage which includes the
Demised Premises notifies the Tenant that such holder has taken
over the Landlord's rights under this Lease, the Tenant shall not
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assert any right to deduct the cost of repairs or any monetary
claim against the Landlord from rent thereafter due and payable,
but shall look solely to the Landlord for satisfaction of such
claim. Nothing herein contained shall be deemed to create any
rights in Tenant not specifically granted in this Lease or under
applicable provisions of law.
8:3 ESTOPPEL CERTIFICATE: Tenant agrees, at any time, and from
time to time, upon not less than ten (10) days' prior notice by
Landlord, to execute, acknowledge and deliver to Landlord, a state-
ment in writing addressed to Landlord or other party designated by
Landlord certifying that this Lease is in full force and effect
(or, if there have been modifications, that the same is in full
force and effect as modified and stating the modifications);
stating the actual commencement and expiration dates of the Lease.;
stating the dates to which rent, and other charges, if any, hav>_
been paid, stating the history of the Percentage Rent which has
become due over the term of the Lease, if any; that the Demised
Premises have been completed on or before the date of such cert-
ificate and that all conditions precedent to the Lease taking
effect have been carried out or fulfilled; that Tenant has accepted
possession; that the lease term has commenced; Tenant is occupying
the Demised Premises and is open for business; and stating whether
or not there exists any default by either party in the performance
of any covenant, agreement, term, provision or condition contained
in this Lease, and, if so, specifying each such default of which
the signer may have knowledge and the claims or offsets, if any,
claimed by the Tenant; it being intended that any such statement
delivered pursuant hereto may be relied upon by Landlord or a
purchaser of Landlord's interest and by any mortgagee or prospect-
ive mortgagee of any mortgage affecting the Demised Premises or the
Shopping Center. If Tenant does not deliver such statement to Lard-
lord within such ten (10) day period, Landlord, and any prospective
purchaser or encumbrancer, may conclusively presume and rely ugon
the following facts: (i) that the terms and provisions of this
Lease have not been changed except as other~uise represented by
Landlord; (ii) that this Lease has not been cancelled or terminated
except as otherwise represented by Landlord; (iii) that not more
than one month's Minimum Rent or other charges have been paid in
advance; and (iv) that Landlord is not then in default under this
Lease. In such event, Tenant shall be estopped from denyir_g the
truth of such facts. Tenant shall also, or. ten (10) days written
notice, provide an agreement in favor of and in the form
customarily used by such encumbrance 'rolder, by the terms of wh=ch
Tenant will agree to give prompt written :.otice to any such
encumbrance holder in the event of any casualty damage to the
Demised Premises or in the event of any default on the part of
Landlord under this Lease, and will agree to allow such encumbrance
holder a reasonable length of time after notice to cure or cause
the curing of such default be°ore exercisinc Tenant's right of
self-help under this Lease, if any, or terminating or declaring a
default under this Lease.
8.4 ATTORIv-M.ENT: At the option cf the holder of any mortgace
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affecting the Demised Premises, Tenant agrees that no foreclosure
of a mortgage affecting the Demised Premises, nor the. institution
of any suit, action, summary or other proceeding against the
Landlord herein, or any successor Landlord, or any foreclosure
proceeding brought by the holder of any such mortgage to recover
possession of such property, shall by operation of law or otherwise
result in cancellation or termination of this Lease or the
obligations of the Tenant hereunder, and upon the request of the.
holder of any such mortgage, Tenant covenants and agrees to execute
an instrument in writing satisfactory to such party or parties or
to the purchaser of the mortgaged premises in foreclosure whereby
Tenant attorns to such successor in interest.
8.5 ASSIGNMENT OF RENTS: With reference to any assignment by
the Landlord of the Landlord's interest in this Lease, or the rents
payable hereunder, conditional in aature or otherwise, which
assignment is made to the holder of any mortgage on the Demised
Premises, the Tenant agrees: -
(A) that the execution thereof by the Landlord, and the
acceptance thereof by such holder, shall never be deemed
an assumption by such holder of any of the obligations
of the Landlord hereunder, unless sueh holder shall, by
written notice sent to the Tenant, specifically other-
wise elect; and
(B) that, except as aforesaid, such holder shall be treated
as having assumed the Landlord's obligations hereunder
only upon foreclosure of such holder's mortgage and the
taking of possession of the Demised Premises by such
holder.
ARTICLE IX: ASSIGNt~NT AND SIIBLETTING
9.1 CONSENT REOIIIRED: Tenant shall not voluntarily or involun-
tarily assign this Lease in whole or part, nor sublet (which tern,
without limitation, shall include the granting of concessions,
licenses, and the like) all or any part of the Demised Premises
without following the procedures detailed herein and obtaining the
prior express consent of Landlord in each instance, which consent
may be granted or withheld in Landlord's sole discretion. In the
event the Tenant seeks the Landlord's consent pursuant to this
Section 9.1, the Tenant shall furnish the Landlord with a Confes-
sion of Judgment instrument containing provisions substantially
similar to those contained in Section 14.2 hereof, executed by the
proposed assignee or sublessee, as the case may be, as well as such
information regarding the prospective assignee or sublessee as the
Landlord may require, including without limi*_ation inforrnation
recarding financial ability and business experience relating to the
uses permitted hereunder. The consent by Landlord to ary assign-
ment or subletting shall not corsti*_ute a waiver of the necessity
fcr such consent in any subsequent ass'_c;:meat or subletting. The
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foregoing shall be construed to include a prohibition against any
voluntary or involuntary assignment or subletting arising by
operation of law. For the purposes of this Lease, the entering
into of any management agreement or any agreement in the nature
thereof transferring control of any substantial percentage of the
profits and losses from the business operations of the Tenant in
the Demised Premises to a person or entity other than the Tenant,
or otherwise having substantially the same effect, shall be treated
for all purposes as an assignment of this Lease and shall be
governed by the provisions of this Section 9.1.
Zn the event that Tenant receives a bona fide written offer
from a third party for the sublease or assignment of the Demised
Premises, Tenant shall forthwith notify Landlord in writing,
aCtaching a copy of said offer, of Tenant's desire to sublet or
assign this Lease upon terms of said offer, whereupon Landlord
shall have thirty (30) days to accent or reject said assignment or
sublease, or at Landlord's sole option, cancel and terminate this
Lease, in which case Landlord may elect to enter into a direct
lease with the proposed assignee or subtenant. The failure of
Landlord to either accept or reject said assignment or sublease
within the said thirty (30) days period shall be deemed a rejection
o£ said assignment or sublease. Notwithstanding anything contained
herein to the contrary, Tenant shall be entitled, in connection
with the sale of Tenant's business, to assign or sublet the Demised
Premises to the buyer of said business, subject to Landlord's
reasonable consent, which shall be based upon said proposed buyer's
financial ability and business e.Yperience in running such a
business, which assignment or sublet shall not, however, relieve
Tenant of its obligations hereunder.
If Tenant shall purport to assign this Lease, or sublet all
or any portion of the Demised Premises, or permit any person or
persons other than Tenant to occuay the Demised Premises, Landlord
may collect rent from the person or persons then or thereafter
occupying the Demised Premises and apply the net amount collected
to the rent reserved herein, but no such collection shall be deemed
a waiver of this Article IX, or the acceptance as tenant of any
such puraorte3 assignee, subtenant or occupant, or a release of
Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained.
Notwithstanding any assignment or sublease, Tenant shall
remain fully liable for the oblications cf the Tenant hereunder,
including, without limitation, the obligation to pay the rents and
other amounts provided for under this Lease, and shall not be
released from performing any of the terms, covenants or conditions
hereof. If Tenant is a corporation or partnership, any sale,
transfer, pledce, leveraged buy out or cther disposition of
twenty-f 1Ve percent (25%) Or mOr°_ Of t_^.°_ corporate StOCk Cr t11e
stock of any corporate auarartor of the T=_nant specified in Section
1.1 (N) hereof, or the stock of the par_-t corporation o`_ the
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Tenant, or twenty-five percent (25%) or more of partnership.
ownership (or any general partner interest in the case of a limited
partnership) {whether such sales, transfer or other dispositions
occur at one time or at intervals so that in the'aggregate, over
the term of this Lease, such transfers of stock or partnership
interests shall have occurred),. or any reorganization or
restructuring which results in the net worth of Tenant decreasing
by more than ten percent (10%), shall be deemed to be an
assignment.
Landlord shall be entitled to, and Tenant shall remit to
Landlord, any profit or consideration which may inure to Tenant as
a result of any assignment or subletting. If Tenant assigns or
sublets the Demised Premises, the Minimum Rent shall thereafter be
adjusted for the balance of the term of this Lease such that the
Minimum Rent payable hereunder shall thereafter be equal to the sum
of {i) the greater of (a) the annual Minimum Rent specified in
Section 1.1 (G) or 1.1 (J) (whichever is applicable) of this Lease
or (b) the annual Minimum Rent payable pursuant to such assignment
or sublease, plus (ii) the highest of the amounts of the annual
Percentage Rent payable hereunder for and with respect to any of
the then last three (3) full lease years preceding t're assignment
or subletting. At Landlord's request, Tenant shall assign to
Landlord the right to collect rent (including any P_dditional Rent)
from any subtenant of Tenant and to apply such proceeds to Tenant's
obligations under this Lease.
Landlor3 shall have the right to sell, convey, transfer or
assign all or part of its interest in the real property and the
buildings of which the Demised Premises are a part or its interest
in this Lease. All covenants and obligations of Landlord under this
Lease shall cease upon the execution of such conveyance, transfer
or assignment, but such covenants and obligations shall run with
the land and shall be binding upon the subsequent owner or owners
thereof or of this Lease.
ARTICLE X: WASTE GOVERNMENTAL AND INSURANCE REQUTAEME',ITS AND
F~ZARDOUS SUBSTANCES
10.1 WASTE OR NO'ZSANCE: Tenant shall not commit or suffer to be
committed any waste upon the Demised Premises or any nuisance,
offensive odor or loud noise (including but without limitation, the
use of loudspeakers) or other act or thing which may disturb the
quiet enjoyment of any other tenant in the building in which the
Demised Premises may be located or in the Shopping Center, or which
may disturb the quiet enjoyment of occupants of adjoining proper-
ties.
10.2 INSURANCE REQUIREMENTS: Tenant shall, at its sole cost and
expense, comply with all of the requirements of any insurance
carrier for the Shopping Center, now in fort>_ or which may
hereafter become applicable.
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10,3 HAZARDOUS SUBSTANCES: Tenant covenants and warrants that
Tenant, Tenant's Work, as set forth in Exhibit F attached hereto
and made a part hereof, and any alterations thereto and Tenant's
use of bemised Premises and performance of its obligations
hereunder will at all times comely with and conform to aII present
and future laws, statutes, ordinances, rules and regulations of a_*~y
federal, state or local governmental, cruasi-governmental or
regulatory authorities (the "Laws"}, including, but not limited to,
environmental .laws, rules and regulations which relate to the
transportation, storage, placement, handling, treatment, discharge,
generation, production or disposal (collectively "Treatment") of
any licruid, solid or gaseous waste, petroleum product, waste
products, radioactive waste, poly-chlorinated binhenyls, asbestos,
hazardous materials of any kind, and any substance which is or
becomes regulated by any Law, statute, ordinance, rule or
regulation (collectively "Waste"). Tenant further covenants and
warrants that it will not engage in or permit any person or entity
to engage in any Treatment of any Waste on or which affects the
Demised Premises. Immediately upon receipt of any Notice (as
hereinafter defined) from any person or entity, Tenant shall
deliver to Landlord a true, correct and complete copy of any
written Notice. "Notice" shall mean any note, notice, or report of
any suit, proceeding, investigation, order, consent order,
injunction, writ, award, or action related to or affecting or
indicating the Treatment of any Waste in cr affecting the Demised
Premises.
Tenant hereby agrees, in addition to and not in lieu of ar_y
other indemnities contained in this Lease or otherwise provided by
law, that it will indemnify, defend, save and hold harmless the
Landlord and Landlord's officers, directors, shareholders,
employees, agents, partners., and their respective heirs, successors
and assigns (collectively "Indemnified Parties") against and from,
and to reimburse the Indemnified Parties with respect to, any and
all damages, claims, judgments, penalties, f_nes, liabilities,
loss, costs and expense (including, without limitation, all
attorney's fees and expenses, court costs, administrative costs,
costs of appeals, consultant's and expert's fees and expenses,
damages arising from any adverse impact on marketing of saace or
diminution in value of the Demised Premises or the Shopping C=_nter
and damages for the loss or restriction of use of rentable or
usable space or of any amenity at the Demised Premises er tie
Shopping Center), incurred by or asserted against the Indemnified
Parties by reason o£ or arising out of; (a) the breach of a,.y
representation or undertaking of Tenant under this Section 10.3 or
(b) arising out of the Treatment of any Waste by Tenant cr any
licensee, concessionaire, manager or other party occupyi-e or
using the Demised Premises, or in or affecting the Demised
Premises. This indemnification of Landlord by Tenant also
includes, but is not limited to, costs incurred in connection with
any investigation by Landlord of site conditions from time to time
or o£ any cleanup, remedial, removal, or restoration work re "._'li red
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by any federal, state or local government agency or political
subdivision because of any release of Waste or breach of this
Section 10.3:
Landlord is given the right, but not the obligation, to
inspect and monitor the Demised Premises and Tenant's use of the
Demised Premises in order to confirm Tenant's compliance with the
terms and the representations set forth in this Section 10.3.
Landlord may require that Tenant deliver to Landlord concurrent
with Tenant's vacating the Demised Premises at Tenant's expense, a
certified statement by licensed engineers, in form and substance
satisfactory to Landlord, stating that Tenant, Tenant's Work and
any alterations thereto and Tenant's use of the Demised Premises
complied and conformed to all Laws which relate to the Treatment of
any Waste in or affecting the Demised Premises.
The Tenant agrees to deliver upon request from Landlord
estoppel certificates to Landlord expressly stipulating whether
Tenant is engaged in or has engaged in the Treatment of any Waste
in or affecting the Demised Premises, and whether the Tenant has
caused any spill, contamination, discharge, leakage, release or
escape of any Waste in or affecting the Demised Premises, whether
sudden or gradual, accidental or anticipated, or of any other
nature, at or affecting the Demised Premises and whether, to the
best of Tenant's knowledge, such an occurrence has otherxise
occurred at or affected the Demised Premises.
10.4 GOVERNMENT PERMITS: Tenant shall, in performing its ob-
ligations hereunder and at its own expense, comply with all ap-
plicable present and future laws, crdinances, rules, and regul-
ations of all federal, state and local authorities from time to
time applicable to the Demise'1 Premises and the business conducted
therein by Tenant, including, without limitation, obtaining and
maintaining any and all permits, licenses, certificates or other
authorizations now or hereafter necessary, lawful and proper in
order to permit Tenant to use the Demised Premises for the purposes
set forth in Section 1.1 (M). Conies of all such pex-nits,
licenses, certificates and authorizations shall be delivered to
Landlord on a timely basis.
10.5 SDRVIVAL: All of the teens, covenants, warranties and in-
demnifications contained in this Section shall survive the te_-m-
ination of this Lease.
ARTICLE XI: ADVERTISING AND PROMOTIONAL PROGRAM
11.1 ADVERTISING AND PROMOTIONAL PROGRAM: The Landlord may
establish an Advertising and Promotional Program (hereafter
referred to as the "Program") to furnish and maintain advertising
and sal=_s promotions which will benefit the Shopping Center. The
promotions directcr staff and any consultar_ts hired by Landlcrd to
direct and perform the activities of the Procram shall be unc_- the
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direction and supervision of Landlord. A representative of each
business occupying the Shopping Center will review the advertising
and other promotional activities provided by the Program. All
monies- received under this Section shall be used solely for
advertising, public relations, promotional services and administ-
rative expenses relating to the promotion of the Shopping Center.
During each lease year, Tenant shall pay to Landlord in monthly
installments in advance, its share of the cost of the Program, an
amount herein called the "Promotional Charge", based on total
square footage of the" Demised Premises. For any fraction of a
month at the commencement or expiration of the tern, the mor_thiy
payment of the Tenant's Promotional Charge shall be prorated.
The Tenant agrees, upon request from the Landlord, to furnish
suitable advertising material for such purposes. Any
advertisements, circulars or other promotions need not make
specific reference to any one or more occupants of the Shopping
Center, but may advertise the Shopping Center generally or
specific portions therein or occupants of such portions. It is
understood and agreed that if the Landlord shall elect, the
Landlord may replace the Program with an association (the
"Association") in order to carry out the activities formerly
carried out by the Program. Upon the creation of such Association,
the Tenant shall immediately join such Association and maintain
membership therein. In addition thereto, the Tenant shall pay to
the Association a sum equal to that which the Terar_t would have
paid to the Landlord for the Tenant's Promotional Charge if the
Program had remained in existence. If the Landlord shall create
such Association to replace the Program or if the Program shall be
an indeae.*.dent entity, it is understood and agreed that, if the
Tenant shall fail to pay the dues and assessments to the
Association or if the Tenant shall fail to pay the Promotional
Charge to such an independent Program, as above provided, the
Landlord shall have the same rights granted to the Landlord under
this Lease for the non-payment of rent or other charges, even
though such dues or assessments may be payable to such Association
or the Tenant's Promotional Charge may be payable to another
entity.
Although neither a Program nor an Association is currently
planned, Landlord, at a future date reserves the richt, but
undertakes no obligation, to establish such a Program or
ASSOCiaticn shculd Tenant's sales or Shopping Center business
requir=_ such a promotional fund.
ARTICLE XII: DESTRUCTION
12.1 TOTAL OR PARTIAL DESTRUCTION: If the Demised Premises shall
be partially or totally destroyed by fire or other casualty
insurable under full standard fire and extended risk insurance, so
a5 to become partially or totally u:.tenantable, t^_ same (unless.
Landlord shall elect not to rebuild as hereinafter provided) s:^a11
be repaired and restored by and at the test of Landlord, to the
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~E
extent originally constructed by Landlord (consistent, .however,
with zoning laws and building codes then in existence), ar_d to
substantially the condition in which such portion of the Demised
Premises was in at the time of such damage.
If (i) more than one-third (1/3) of the building in which the
Demised Premises are located shall be substantially destroyed or
damaged (as that term is hereinafter defined) by fire or other
casualty (whether or not the Demised Premises are damaged or
destroyed), or (ii) any lender of Landlord does not permit use of
insurance proceeds to repair and restore the building, or (iii) the
unexpired portion of the term of this Lease shall be two (2) years
or less at the date of the damage,. then Landlord may elect not to
repair or rebuild the Demised Premises, or so much thereof as was
originally constructed by Landlord, by giving written notice within
sixty (60) days after such occurrence of its election to terminate
this Lease; otherwise, Landlord shall proceed with such recon-
struction with reasonable speed after such occurrence (but the
Landlord shall not be responsible for any delay which may result
from any cause beyond the Landlord's reasonable control), and this
Lease. shall remain in full force and effect. Notwithstanding
anything to the contrary contained herein, Landlord shall not be
obligated to commence reconstruction or repairs until Landlord has
received the proceeds of any applicable insurance claim and
Landlord's oblication to restore and repair is limited to the
proceeds of such insurance.
In the event that Landlord shall exercise the right given
heretofore to terminate, then this Lease and the terms hereof shall
cease as of the date of such damage or destruction, and all rent or
other charges payable by Tenant shall be prorated to the date of
such damage or destruction. In the evert that this Lease is not
canceled, then Minimum Rent only shall be abated or reduced
proportionately during the period in which the Demised Premises are
rendered wholly or partially unter_antable to the extent such damage
or destruction shall interfere with the operation of Tenant's
business in the Demised Premises and to the extent that Landlord is
paid the eeuivalent of such Minimum Rent by rent loss insurance
proceeds, Such abatement or reduction shall continue for the
period commencing with such destruction or damage and ending with
Landlord's substantial completion of such work or repair or
restoration as Landlord is obligated or elects to do, as the case
may be, and as provided in this Article XiI, Nothing in this
Section shall be construed to abate or reduce Percentace or
Additional Rent.
12.2 PARTIAL DESTRIICTION OF SHOPPING CENTER: In the event that
50% or more of the Shopping Center shall be substantially damaged
or destroyed by fire or other cause, notwithstanding that the
Demised Premises may be unaffected by such fire or other cause,
Landlord shall have the right, to be exercised by notice in writing
delivered to Tenant within sixty (60) days a`_ter said occurrence,
_~g_
to cancel and terminate this Lease. Upon the giving of such notice
to Tenant, ,the term of this Lease shall expire by lapse of time 30
days after such notice is given, and Tenant shall vacate the
Demised Premises and surrender the same to.Landlord pursuant to the
terms of this Lease.
12.3 TENANT S RESTORATION: Unless this Lease is terminated as
provided in Section 12.1 or Section 12.2 of this ARTICLE XI2, if
the Demised Premises shall be damaged or destroyed by fire or other
casualty, then the Tenant shall: (i) repair and restore all
portions of the Demised Premises not required to be restored by the
Landlord pursuant to this ARTICLE XII to substantially the
condition which such portions of the Demised Premises were in at
the time of such casualty; (ii) equip the Demised Premises with
trade fixtures and all personal property necessary or proper for
the operation of the Tenant's business; and (iii) open for
business in the Demised Premises as soon thereafter as possible.
12.4 SIIBSTANTIAL DAMAGE: The term "substantially damaged or
destroyed", as used in this ARTICLE XII, shall have reference to
damage of such a character as cannot reasonably be exaected to be
repaired, or the premises restored, within sixty (60) days from the
time that such repair or restoration work would be commenced.
ARTICLE XIII: EMINENT DOMAIN
13.1 CONDEMNATION: In the event of any condemnation or
conveyance in lieu thereof of the Demised Premises or the Shopping
Center, or both, whether whole or partial, Landlcrd may terminate
this Lease, and in any even*_, Tenant shall have no claim against
Landlord or the condemning authority for the value of the unexpired
term, and Tenant shall not be entitled to any part of the
compensation or award, whether paid as compensation for diminution
in value to the leasehold or to the fee of the Demised Premises,
and La.*:dlord shall receive the full amount thereof, Tenant hereby
waiving any right to any part thereof and assigning to Landlord its
interest therein; provided, however, to the extent the amount
recoverable by Landlord, as hereinabove set forth, is not
diminished thereby, Tenant shall 'r_ave the right to claim and
recover from the condemning authority (but not from Landlord) such
compensation as may be separately awarded to Tenant in Tenant's own
name and right on account of all damage to Tenant's business by
reason of the condemnation, any cost which Tenant may incur in
removing Tenant's property from the Demised Premises and gay costs
of relocating Tenant's business. Further, Tenant's rights to
recover under this paragraph shall be subordinate to the rights of
Landlord's first mortgacee.
13.2 RESTORATION OF DEMISED ?REMISES: In the event that any part
of the Demised Premises s:,all be taken or condemned, a^d should
this Lease rot be terminated is accordance w'_th the foregoing
provision, the Landlord will, wi*_hin a reasonable time after such
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taking or condemnation, restore the Demised Premises to an
architectural unit as nearly like its condition prior to such
taking as shall be practicable. The Minimum Rent or a fair and
just proportion thereof, according to the nature and extent of the
damage sustained, shall be suspended or abated until such
restoration is substantially complete.
ARTICLE %IV: DEFAIILT OF TENANT
14.1 DEFAULT: Any one or more of the following shall constitute
an ^Event of Default" under this Lease:
(A) failure of Tenant to make, within ten (10} days after
the date when due, any payment of Minimum Rent, Percentage Rent,
Additional Rent or other monetary amount payable by Tenant
hereunder or to timely discharge any other monetary obligation (it
being understood that Tenant's obligation to pay any rental herein
is an independent covenant and that Tenant will pay such rental
without offset or deduction);
(B) Tenant's failure to perform any other of the terms,
conditions or covenants of this Lease to be observed or Derformed
by Tenant, which failure continues for ten (10) days after written
notice thereof, provided, however that such right to written notice
shall be limited'to two (2) times during each calendar year of the
term of this Lease; -
(C) if Tenant shall become bankrupt or insolvent, or file
or have filed against it any bar_kruntcy proceedings, or take or
have taken against it in any court DL'TSL1dnL to any statute, either
of the United States or of any state, a petition of banknaptcy or
insolvency, or for reorganization or for the appointment of a
receiver or trustee of all or a portion of T'enant's property, or if
Tenant makes an assignment for the benefit of creditors, or
petitions for or enters into such an arrar_cement;
(D) if Tenant fails, after the term of this Lease
commences, to be oven for business to the public for more than two
(2) days when required by this Lease to be so oven in any one lease
year, or for more than an aggregate of any five (5) such days
during the term hereof, or if the Tenant shall otherwise abandon or
vacate the Demised Premises, or suffer this Lease to be taken under
any writ of execution;
(E) if Tenant shall default in the timely payment of
Minimum Rent, Percentage Rent, Additional Rent, or other charge
payable by Tenant hereunder or to timely discharge ar_y other
monetary obligation three times in any twelve month period,
notwithstanding the fact that any such de'_ault shall have been
cured;
(F) the fa'_sification by Te^.ant cr a-y agent cf Te^ant o=
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any report or statement required to be furnished to Landlord
pursuant to the terms of this Lease; the falsification of any such
document shall be deemed an incurable, material breach of this
Lease -and, at Landlord's option, constitute an immediate
termination of Tenant's right to possession of the Demised
Premises; or
(G) at the option of Landlord, if Tenant cr any affiliate
of Tenant shall default with respect to any other Lease or
agreement between it and Landlord or any affiliate of Landlord.
The notice and grace period provisions •_n subpazaaranhs (A}
and (B) above shall have no application to the defaults referred to
in subparagraphs (C), (D), (E), (F) and (G) above.
If any Event of Default occurs, the Landlord, besides all-
such other rights or remedies it may have under this Lease or in
law or in equity, shall have the right, without demand or notice
(and Tenant hereby expressly waives any notice to quit possession
of the Demised ?remises) to enter the Demised Premises and take
possession thereof and of all permanent improvements thereon and
may remove all persons and property from the Demised Pre~ises by
force, summary action, or otherwise, and such property may be
removed and stored in a public warehouse or elsewhere at the cost
of and for the account of Tenant, all without se:-vice of notice or
resort to legal process, and without being deemed guilty of
trespass or becoming liable for any loss or damage which may be
occasioned thereby and without prejudice to ary remedies which
might otherwise be used for arrears of rent or preceding breach of
covenant. Tenant agrees that Tenant shall have no further claim
under this Lease and shall quit and deliver un the possession of
the Demised Premises, including permanent improvements to the
Demised Premises, when this~Lease terminates by limitation or in
any other manner provided for herein.
14.2 REMEDIES; If an Event of Default occurs, the Landlord may
elect to re-enter or take possession as provided for herein, and it
may either terminat>_ this Lease, or it may from time to time
without terminating this Lease make such alterat`_ons and repairs as
may be necessary in order to relet the Demised ?remises or ary part
thereof for such term or terms (which may be for a term ex*_ending
beyond the term of this Lease) and at such renal or renta'_s and
upon such other terms and conditions as Landlor3 in its sole
discretion may deem advisable. Any re letting shall be done in such
a manner as Landlord may deem prcDer. it is specifically
understood and agreed that the Landlord shall be entitled to take
into account in connection .with any reletting of the Demised
Pr=_mises all relevant factors which would be taken into account by
a sophisticated developer in securing a replacement tenant for the
Demised Pr °_m15eS, Such as, but nOt limited tC, t^e type Of ShObDing
ce^ter then beire operated en the Shopoinc Center, matters of
tenant mix, the t.,rpe of operation proposed to be conducted by any
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such replacement tenant, and the financial responsibility of any
such replacement tenant; and the Tenant hereby waives, to the
extent permitted by applicable law, any obligation the Landlord
may have to mitigate the Tenant's damages. Further, if no such
waiver of any duty that may be imposed upon Landlord to mitigate
Tenant's damages is effective, then at no time shall Landlord's
decision to lease or let other .available space in the Shopping
Center be deemed to be a failure to mitigate. said damages. IIpon
each such reletting all rentals received by Landlord shall be
applied first to the payment of any indebtedness other than rent
due hereunder from Tenant to Landlord; second to the payment of any
costs and expenses of such reletting including brokerage fees and
attorneys' fees, costs of collecting the rent in connection with
such relet, and the costs of any necessary or desirable alterations
and repairs; third to the payment of the most overdue rent owed at
that time; and the residue, if any, shall be held by Landlord and
applied in payment of future rent as the same may become due and
payable hereunder from Tenant. If such rentals received from such
reletting during any month be less than that to be paid during that
month by Tenant hereunder, Tenant shall be liable for the payment
of such deficiency to Landlord. Such deficiency shall be calculated
and become payable monthly in the same manner as Minimum Rent, as
specified in Section 2.1 hereof. No such re-entry or the taking of
possession of the Demised Premises by Landlord shall be construed
as an election on its part to terminate this Lease or to accept a
surrender thereof unless a written notice of such intention be
given to Tenant. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate
this Lease for such previous breach. Should Landlord at any time
termin_*_e this Lease for any Event of Default, in additicr, to any
other remedies it may have, it may recover from Tenant all damaces
it may occur by reason of such breach, including the cost of
recovering the Demised Premises, and the amount of rent and charges
ecuivaleat to rent reserved in this Lease for the remainder of the
stated term, all of which amounts shall be immediately due and
payable from Tenant to Landlord. In determining the rent which
would be payable by Tenant hereunder subsecuent to default, the
annual Tent for each year of the unexpired term shall be ecrual to
the Minimum Rent set forth in Section 1.1G (or if default occurs
during any option period hereto, as set forth in Section ..1(J)),
and the Additional and Percentage Rents specified in Secticn 1a.3.
TO INDUCE THE LANDLORD TO ENTER INTO THIS LEASE, (I) THE
TENANT CONFIRMS AND AGREES THAT T:~IS TRANSACTION IS A COMMERCIAL
AND NOT A CONSUMER TRANSACTION, {II) THE TENP.DIT HERESY WAIVES, TO
THE FLZL EXTENT PERMITTED BY LAW, ANY RZGHT TO TRIAL BX JTJRY IN ANX
ACTION, ?ROCEEDING OR COUNTERCLP.IM BROUGHT BY THE LPSIDLORD AGAINST
THE TENANT ON ANY MATTERS 4v'HATSOE~'R ARISING OUT OF OR IN A.NY WAX
CONNECTED WITH THIS LEASE, T'r-*.RELATIONSE=? OF THE LANDLORD AND TAE
TENANT, ':.~ TENANT'S USE OR OCCUP?u~ICY GF THE DEMISED PREMISES, NOT
TO INTER?OSE, TO THE FULL EXTENT PERMITTED BY LAW, UNLESS TENANT
WOULD LGSE iTS CAUSE OF ACTION BY NGT DOING SG, P.NY COUNTE.'-.CLF.iM OF
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WF.ATEVER NATURE OR DESCRIPTION IN ANY PROCEEDING COMMENCED BY THE
LANDLORD FOR NONPAYMENT OF MINI-JM RENT, PERCENTAGE RENT, ADDT_TZONAL
RENT OR ANY OTHER AMOUNT DUE HEREUNDER, PROVIDED THE FOREC-0ING
SHALL NOT BE CONSTRUED AS A WAIVER OF THE RIGHT OF THE TENANT TO
ASSERT SUCH CLAIMS IN ANY SEPARATE ACTION BROUGHT BY THE TENANT'.
TNT FOLLOWING THREE PARAGRAPHS SET FORTH WARRANTS OF AUTH-
ORITY FOR AN ATTORNEY TO CONFESS JUDGM~~~IT AGAINST TENANT. ZN
GRANTING THESE WARRANTS OF ATTORNEY TO CONFESS ~'DDGMENTS AGAINST
TENANT, TENANT HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY,
AND, ON THE ADVICE OF THE SEPARATE COUNSEL OF TENANT, UNCONDITION-
ALLY WAIVES ANY AND ALL RIGHTS TENANT HAS OR MAY HAVE TO PRIOR
NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECT=VE CON-
STITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWt.ALTH OF
PENNSYLVANIA.
(A) Tenant hereby empowers any prothonotary or attorney
of any Court of Record to appear for Tenant in any and all actions
which may be brought for Minimum Rent, Percentage Rent, Additional
Rent and/or any other charges, payments, costs and expenses herein
reserved as rent, or herein agreed to be paid by Tenar_t and/or to
sign for Tenant an agreement for entering in any competent Court an
amicable action or actions for the recovery of such rent or ether
charges or expenses, and in said suits or in said amicable action
or actions to confess judgment against Tenant ,,"or all or ar_y Dart
of the Minimum Rent, Percentage Rent, Additional Rent and other
charges specified in this Lease and then due and unpaid, ar_d for
interest and costs together with reasonable attorney's fees. Such
authority shall not be exhausted by one exercise thereof but
judcment may be confessed as aforesaid from time to time as often
as any of said rent and/or other charges shall fall due or be in
arrears.
(3) UDOn the expiration of the then current term of this
Lease or the earlier termination or surrender hereof as provided in
this Lease, it shall be lawful for any attorney for Tenant, as well
as for all persons claiming by, through or under Tenant, to sign ar_
agreement for entering in any competent Court an amicable action _n
ejectment against Tenant and all persons claiming by, throuch or
under Tenant and therein confess judgment of the recovery by Land-
lord of possession of the Demised Premises, for which this Lease
shall be its sufficient warrant, whereupon, if Landlord se desires,
a Wr1t Of pOSSe5S1on OZ other apprpprlat°_ Wrlt llnder t.^.e 3L`:e5 OL
Civil Procedure then in effect may issue forthwith, wit :out any
prior writ or proceedings, provided, however, if this Lease is
terminated and the possession of the Demised Premises remain in cr
be restored to Tenart, Landlord shall have the right for the same
default and upon any subsecruert default or defaults, or upon the
termination of this Lease under any of the terms of this Lease to
br~_ng one cr more further amicable actions as her=_-be_cre set
forth to recover possession of the Demised Premises a:c connfess
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judgment for the recovery of possession of the Demised Premises as
hereinabove provided.
(C) In any amicable action of ejectment and/or rent,
Landlord shall first cause to be filed in such action an affidavit
made by him or someone acting for him, setting forth the facts
necessary to authorize the entry of judgment, and, if a true. copy
of this Lease (and of the truth of the copy such affidavit shall be
sufficient evidence) be filed in such action, it shall not be
necessary to file the original as a warrant of attorney, and Tenant
hereby releases to Landlord and to any and all attorneys who may
appear for Tenant all errors in said proceedings and all liability
thereof. If proceedings shall be commenced by Landlord to recover
possession under the Acts of Assembly and Rules of Civil Procedure,
either at the end 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 notice to quit which may be
retained by the Landlord and Tenant Act of 1951 or any other
statute or law.
14.3 ADDITIONAL AND PERCENTAGE RENT: For the purposes of this
ARTICLE XIV, it shall be deemed that Additional and Percentage
Rent, if provision for either or both is made in this Lease, for
any period after any default and entry by the Landlord would have
bee^, at a monthly rate thereafter equal to the average monthly
Additional and Percentage Rent which the Tenant was obligated to
pay to the Landlord under this Lease either: (i) from the
Commencement Date hereof to the date of such default; or (ii)
during the last three {3) years prior to the date of such default
- whichever is treater.
14.4 GUARANTORS: If this Lease shall be guaranteed on behalf cf
the Tenant, all of the provisions of this ARTICLE XIV with respect
to bankruptcy of the Tenant, etc., shall be deemed to read "the
Tenant or the Guarantor hereof."
14.5 BANKRUPTCY OR OTFDrR DEFAIILT: Tenant agrees that this Lease
is a lease of "real property in a shopping center" and that a
debtor in possession and/or trustee in bankruptcy acting pursuant
to the provisions of the revised bankruptcy code, may assume this
Lease only if, in addition to such other conditions of this Lease
and of applicable law, said debtor in possession./trustee shall
provide landlord with such written assurances of future performance
as are acceptable to Landlord. Any closing of Tenant's business,
chance in product or service mix, alteration in the size of the
Demised Premises, change in advertising program, chance in method
of operation or change of Tenant's trade name by said debtor in
possession/trustee shall be deemed to be a material disruption in
the tenant mix and balance of the Shopping Center. Landlord shall
have at all times a valid Lien from ail rentals and other sums of
mcrey becoming due hereunder from Tenant, upon all goods, wares,
_,a _
equipment, fixtures, furniture and other personal property of
Tenant situated on the Demised Premises, and such property shall
not be removed therefrom without the consent of Landlord until all
arrearages ir_ rent as well as any and all other sums of money then
due to Landlord hereunder shall first have been paid and
discharged. Upon the occurrence of any Event of Default by Tenant,
Landlord may, in addition to any other remedies provided herein or
by law or equity, enter upon the Demised Premises and take
possession of any and all goods, wares, equipment., fixtures,
furniture and other personal property of Tenant situated on the
D@mised Premises without liability for trespass or conversion, and
s@11 the same with or without notice at public or private sale,
with or without having such property at the sale, at which Landlord
or its assigns may purchase, and apply the proceeds thereof less
any and all expenses connected with the taking of possession and
sale of the property, as a credit against any sums due by Tenant to
Landlord. Any surplus shall be paid to Tenant, and Tenant agrees to
pay any deficiency forthwith. Alternatively, the lien hereby
granted may be foreclosed in the manner and form provided by law
for foreclosure of security interest or in any other form provided
by law. Ary statutory lien for rent is not hereby waived, the
express contractual lien hereir_ granted being in addition and
supplementary thereto. Tenant will execute upon Landlord's request
a financing statement and security agreement evidencing Landlord's
security interest in Tenant's nerscnal property and warrants to
Landlord that there are no prior liens or security interests on
said personal properties. In addition to other remedies available
under this Lease, in the event of an occurrence of an Event of
Default or, in the event of a threatened breach by Tenant of any of
the covenan*_s cr provisions hereof, Landlord shall have the right
of injurcticn and the right to ir.~oke any remedy allowed by law or
in equity as if re-entry, summary proceedings and other remedies
were not herein provided for. Mention in this Lease of any
particular remedy shall not preclude Landlord from any other
remedy, at law or in equity. Tenant hereby expressly waives any and
all rights cf redemption granted by or under any present or future
laws, including possession pursuant to X504 of the Landlord and
Tenant Act of 1951, in the event Tenant is evicted or dispossessed
for any cause, or in the event Landlord obtains possession of
the Demised Premises. No receipt of monies by Landlord from Gr
for the account of Tenant, or from anyone in possession or
occupancy of the Demised Premises, after the termination of this
Lease shall affect any notice given Tenant prior to the receipt of
such money, it beinc agree3 that after (i) Landlord has repossessed
the Demised Premises, (ii) the service of notice of termination,
(iii) the commencement of a suit, or (iv) final judgement for
possession of the Demised Premises, Landlord may receive and
Collect anv rent or other amounts due Landlord and such payment
shall not in any respect reinstate this Lease and shall not waive,
aLfeCt Gr i-;pair said aossession, notice, Sll1t Or judgement wlthcut
the express written consent Gf Landlord. No delay or omission. of
Landlord t0 EX°_-CISe anV right Gr remedy llnCer th15 Le35e, C= 3C
_7j_
law or in equity shall be construed as a waiver of any Event of
Default.
When, pursuant to the 3ankruptcy Code, the Trustee or Tenant
and Debtor-Zn-Possession shall be obligated to nay reasonable use
and occupancy charges for the use of the Demised Premises or any
portion thereof, such charges shall not be Less than the Minimum
Rent, Percentage Rent, Additional Rent and all other charges
accruing hereunder.
14.6 FAILIIRE TO PAY, INTEREST: If at any time Tenant shall fail
to pay any taxes, assessments, or liens, provide insurance or
perform any act required by this Lease to be made or performed by
it, or fail to pay any charge payable by Tenant or to timely
discharge any other monetary obligation of Tenant required by this
Lease, Landlord, without waiving or releasing Tenant from any
obligation or default under this Lease, may (but shall be under no
obligation to) at any time thereafter make such payment or perform
such act for the account and at the expense of Tenant. Tenant shall
pay to Landlord a "late charge" of five cents ($.45) for each
dollar paid or each dollar of expense so incurred by Landlord and
all sums payable by Tenant to Landlord under this Lease. A11 sums
so paid by Landlord, all costs and expenses so incurred and all
sums payable by Tenant to Landlord under this Lease shall accrue
interest at a rate equal to the lesser of one and one-half (1.5%)
per month or the maximum rate permitted by law, from the date of
payment or incurring thereof by Landlord and shall constitute
Additional Rent payable by Tenant under this Lease ar_d shall be
paid by Tenant to Landlord upon demand.
__.------ -- -- ARTICLE XV: ACCESS BY LANDLORD
15.1 RIGHT OF ENTRY: Landlord or Landlord's agents shall have
the right to enter the Demised Premises at all times as may be
required by an emergency situation and at all reasonable times to
examine the same and to snow it to prospective purchasers or
lenders and to make such inspections, repairs, alterations,
improvements or additions as Landlord may deem necessary or
desirable, and Landlord shall be allowed to take all material into
and upon said Demised ?remises that may be required therefor
without the same constituting an eviction of Tenant in whole or
part.
If repairs are required to be made by the Tenant pursuant to
the terms hereof or if the. T>_raat is *_ecuired to perform ass ot'r_er
obligation under this Lease, the Landlor3 may demand that the
Tenant make such repairs or perform such obligation forthwith, and
if the Tenant refuses cr neglects to commence such repairs or
performance and complete the same with reasonable dispatch, after
such demand, the Landlor3 may (but shall not be recuired so to)
mak=_ or cause such repairs or performance to be done and shall not
be responsible to the TeriaP.t ...r aP.y loss Cr CamaCe twat maV aCCr~:e
to its stock oz business by r=_ason thereof. _`_ the Landlord makes
Cr Ca L'Se5 SU C.^: reDa '_=5 Gr ^°_r=CrIIla:^.C°_ tG :Je CCne, Or e:7Cea'JC-'S SG
to do, the =e.^.ant agreFs ti:_t '_t w; li flirt^w'_~ on de:,,a.^.c, ~a;~ ~c
-3~-
the Landlord the cost thus incurred as Additional Rent, and if it
shall default in such payment, the Landlord sha12 have the remedies
provided in ARTICLE XIV hereof.
During the six (6) months prior to the expiration of the term
of this Lease or any renewal tern, Landlord may exhibit the Demised
Premises to prospective tenants or purchasers and place upon the
Demised Premises the usual signage for space rental.
Nothing herein contained, however, shall be deemed or con-
strued to impose upon Landlord any obligation, responsibility or
liability whatsoever for the care, maintenance or repair of the
building or any part thereof, except as otherwise herein
specifically provided.
ARTICLE XVI: TENANT`S PROPERTY
16.1 TAXES ON LEASEHOLD: Tenant shall be responsible for, and
shall pay before delinrniency, all municipal, county, or state taxes
assessed during the term of this Lease against any leasehold in-
terest or personal property of any kind owned by or placed in,
upon, or about the bemised Premises by Tenant, and the Tenant shall
pay all license fees and other charges which may lawfully be
imposed upon the business of the Tenant.
16.2 LOSS AND DAMAGE: The Tenant agrees to use and occupy the
Demised Premises and to use such other portions of the Shopping
Center as it is herein given tr_e right to use at its own risk; and
that the Landlord shall have no responsibility or liability for any
loss of or damage to the Tenant's leasehold improvements or to
fix*_ures or other personal property of the Tenant or those claiming
by, through or under the Tenant. The provisions of this Section
shall apoly during the whole of the term hereof, and any earliez
period that Tenant may enter the Demised Premises after receiving
written permission therefor from Landlord.
The Tenant agrees that the Landlord shall not be responsible
_ or liable to the Tenant, or to those claiming by, through or under
the Tenant, for any loss or damace that may be occasioned by or
through the acts or omissions of-persons occupying adjoining
premises or any part of the premises adjacent to or connecting with
the Demised Premises or any of the buildings on the Shopping
Center, or otherwise, or for any loss or damage resulting to the
Tenant to those claiming by, through or under the Tenant, or its or
their property, from the bursting, stopping or leaking of water,
gas, sprinkler, sewer cr steam pipes.
16.3 NOTICE BY TENANT: Tenant shall give immediate notice to
Landlord in case of fire or accidents, or damace to er of defects
in the Demise3 Premises or in the building of which the Demised
Premises are a oast.
AP.TICLE XVII: HOLDING OVER, SUCCESSORS
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mL
~~ .
17.1 HOLDING OVER: Any holding over by the Tenant after the
expiration of-the term of this Lease shall be treated as a tenancy
at sufferance at one and one-half times the Minimum Rent payable
immediately before said expiration of the Lease (and if varying
rates are specified herein, at one and one-half times the highest
such rate) plus the Percentage and Additional Rent and other
charges specified herein, prorated on a daily basis, and shall
otherwise be on the terms and conditions set forth in this Lease,
so far as applicable.
17.2 SIICCESSORS AND ASSIGNS: Except as otherwise herein
expressly provided, this Lease and all the covenants, terms,
provisions and conditions herein contained shall inure to the
benefit of and be binding upon the heirs, representatives,
successors and assigns of each party hereto, and all covenants
herein contained shall run with the land ar_d bind any and all
successors in title to Landlord. The reference contained herein to
successors and assigns of the Tenant is not intended to constitute
a consent to assignment by the Tenant, but has reference only to
those instances in which the Landlord may later give consent to a
particular assignment as required by the provisions of ARTICLE IX
hereof.
~\~ ARTICLE XVIII: QIIIET ENJOYMcNT
18.1 LANDLORD'S COVENANT: The Tenant, subject to the terns and
provisions of this Lease, on payment of the rent and observing,
keeping and performing all of the terms and provisions of this
Lease on its part to be observed, kept and performed, shall
lawfully, peaceably and quietly have, hold, occupy and enjoy the
Demised Premises during the term hereof without hindrance or
ejection by any persons lawfully claiming under the Landlord; but
it is understood and agreed that this covenant and any and all
other covenants of the Landlord contained in this Lease shall be
binding upon the Landiord and the Landlord's successors only with
respect to breaches occurrinc during the Landlord's and the
Landlord's successors' respective ownership of the Landlord's
interest hereunder. It is further understood and acreed that the
Landiord shall in no event be liable for failure to perform any
obligation under this Lease in the event the Landlord is prevented
from so performing by strike, lockout, breakdown, accident, order
or regulation of or by any governmental authority, or failure cf
supply, or inability by the exercise of reasonable diligence to
obtain supplies, parts, or employees necessary to furnish such
se r~ices, or because of war or other emercency, or for any cause
beyond the Landlord's reasonable control, or for any cause due to
any act or neglect of the Tenant cr its servants, agents,
employees, licensees, or any person claiming by, throuch cr u.^.der
the Tenant, or any termination for any reason. of the Landlord's
occupancy of the premises from which gay s=_rvice or work is being
supplied by the Landlord, and in no even shall the Landlord =_ver
be liabl=_ to the Tenant for any indirect or consequential damages.
XIX: MISCELLANr:OIIS
-3c-
19.1 wAivER: The waiver by Landlord of any breach of-any term,
covenant or condition herein contained shall not be deemed to be a
waiver of any subsequent breach of the same or any other term,
covenant or condition herein contained. No covenant, term or
condition of this Lease shall be deemed to have been waived by
Landlord unless such waiver shall be in writing.
19.2 ACCORD AND SATISFACTION: No payment by Tenant or receipt by
Landlord of a lesser amount than shall be due hereunder, shall be
deemed to be other than a payment on account nor shall any endorse-
ment or statement on any check or any letter accompanying any check
or payment as rent be given any effect or be deemed an accord and
satisfaction, and Landlord may accept such checks without prejudice
to any other rights or remedies which the Landlord may have.
19.3 NO PARTNERSHIP: Lanalord does not, in any way or for any
purpose, become a partner of Tenant in the conduct of its business
or otherwise, or joint adventurer or a member of a joint enterprise
with Tenant.
19.4 FORCE MAJEIIRE: In the event that either party hereto shall
be delayed or hindered in or prevented from the performance of any
act required hereunder by reason of strikes, lockouts, Zabor
troubles, inability to procure materials, failure of power,
restrictive governmental laws or regulations, riots, ir_surrection,
war, or other reason of a 1~ke nature not the fault of the party
delayed in performing work or doing acts required under the terms
of this Lease, then the time allowed for performance of such act
shall be extended by a period equivaler_t to the period of such
delay. The provisions of this Section 19.4 shall not operate to
excuse Tenant from the prompt payment of Mir_imum Rent, ?ercentage
Rent, Additional vent, or any other payments required by the terms
of this Lease.
19.5 LANDLORD'S LIABILITY: If Landlord shall fail to perform any
covenant, term or condition of this Lease upon Landlord's part to
be performed, Tenant may not terminate the Lease, and Tenant's sole
remedies shall be money damages (except as set fcrth is Section
19.16), and further, Tenant hereby waives any and all rights or
claims to consequential or special damages. If Tenant shall
recover a money judgement against Landlord, such judgement shall be
satisfied only out of the proceeds of sale received upon execution
of such judgement and levy thereon against the richt, title and
interest of Landlord in the Shopping Center as the same may then be
encumbered and neither Landlord nor if Landlord be a Dar*_nership,
any of the partners comprising such partne=ship shall be liable for
any deficiency.
Notwithstanding anything herein contained to the ccrtrary, it
is specifically anderstood and agr=ed that here shall be no
personal liability for any deficiency or otherwi=_e on the part of
the Landlord, its agents, representatives, employees, or c.^.y G' its
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constituent, members, partners or shareholders, or their respective
legal representatives, heirs, successors and assigns as the case
may be, with respect to any of the terms, provisions, covenants and
conditions of this Lease or otherwise, and that Tenant shall look
solely to the estate, property and equity of Landlord (or such
successor in interest) in the Shopping Center and subject to the
prior rights of any mortgagees for the satisfaction of each a.*td
every remedy of Tenant in the event of any breach of any of the
terms, provisions, covenants and conditions of this Lease to be
performed by Landlord, or in the event of any other claim which
Tenant may allege against Landlord, its agents, representatives,
employees, constituent members, partners or shareholders, or their
respective legal representatives, heirs, successors and assigr_s,
which exculpation of personal liability shall be absolute and
without exception. In the event of the sale or other transfer of
Landlord's right, title and interest in the Demised Premises or the
Shopping Center, Landlord shall be released from all liability and
obligations hereunder.
19.6 NOTICES AND PAYMENTS: Any notice by Tenant to Landlord must
be served by certified mail, postage prepaid, addressed to Landlord
at the place designated for the payment of rent, with copies to:
Slater, Sandler & Shulman, P.C., One Hartford Square West, ?.0. Sox
231336, Hartford, CT, 06106, Attention: James H. Shulman, Escuire,
or at such other address or addresses as Landlord may designate
from time to time by written notice. Any notice by Landlord (whi^_h
may be given by Landlord or Landlord's attorney or management
company} to Tenant must be served by certified mail, postage
prepaid, addressed to Tenant at the Demised Premises, or at such
other address or addresses as Tenant may designate frcm time to
time by written notice to Landlord. Ail notices shall be effective
upon delivery or attempted delivery in accordance with this Section
19.6. Until otherwise notified in writing, Tenant shall pay all
rent reserved herein and all other sums required under this Lease
by check payable to the order of Landlord, and shall forwar3 the
same to Landlord as herein provided.
19.7 FINANCIAL STATEMEN'f5: The persons signing this Lease on
behalf of Tenant hereby personally represent and warrant to
Landlord that tr_e financial statements delivered to Landlord prior
to the execution of this Lease properly reflect the true and cor-
rect value of all the assets and liabilities of Tenant and Guar-
antors. Tenant acknowledges that in ent=_r~_*:g into this Lease, Land-
lord is relying upon such statements and Tenant shall supply Land-
lord updated financial statements of Te_ant and Guarantors each
lease year and from time to 'time as requested by Landlord.
19.8 GUARANTORS: This Lease shall not be effective unless th=_
DerSORS l:.sted ?n Section 1.1 (N} her °_Of Shall eXeCU CB t}''@ G1araI'ity
attached as Exhibit "G" of this Lease.
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19.9 CAPTIONS AND 6ECTION NiTt~ERS: The captions, section
numbers, article numbers, and headings appearing in this Lease are
inserted only as a matter of convenience, and in no way define,
limit, construe, or describe the scope or intent of such sections
or articles of this Lease.
19.10 DEFINITIONS: The word ^Tenant" shall mean each and every
person, firm or corporation mentioned as a Tenant herein, be the
same one or more; and if there shall be more than one Tenant, any
notice recruired or permitted by the terms of this Lease may be
given by or to any one thereof, and it shall have the same force
and effect as if given by or to all thereof. If there shall be more
thar. ore Tenant, they shall all be bound jointly and severally.
19.11 PARTIAL INVALIDITY: If any term, covenant, or condition of
this Lease or the application thereof- to any person or circum-
stance, shall to any extent be invalid or unenforceable, the
remainder of this Lease or the application of such term, covenant,
or condition of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
19.12 RECORDING: The Tenant agrees not to record the within
Lease, but each party hereto agrees, on recuest of the other, to
execute a Notice of Lease in recordable form, complying with
applicable Commonwealth of Pennsylvania laws, and reasonably
satisfactory to Landlord's attorneys. In no event shall such
document set forth the rental or other charges payable by the
Tenant under this Lease; and any such document shall expressly
state that it is executed pursuant to the provisions contained in
this Lease, and is not intended to vary the terns and conditions of
this Lease.
19.13 ENTIRE AGREEMENT: The Lease and the exhibits and riders, if
any, set forth all the covenants, promises, agreements, conditions
and understandings between Landlord and Tenant concerning the
Demised Premises and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between them
other than as herein set forth. All prior communications, negotia-
tions, arrangements, representations, agreements and
understandings, whether oral, written or both, between the parties
hereto, and their representatives, are merged herein and
extincuished, this Lease superseding and cancelling the same.
Except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon
Landlor3 or Tenant unless reduced to writing and executed by t'r_e
party against which such subsequent alteration, amendment, change
or modification is to be enforced. If any provision contained in
any rider here*_o is inconsistent with any printed provisions of
this Lease the provision contained in such rider shall sunersece
said prir.*_ed provision. Tenant hereby acknowledges t'rat (a} this
Lease contains no restrictive covenants or exclusives in favor cf
Tenant; (b) this Lease shall not be de_med or interpre*_ed to
_ql_
contain, by implication or otherwise, any warranty, representation
or agreement on the part of Landlord that any department store or
regional or national chain store or any other merchant shall ogee
for business or occupy or continue to occupy any premises in or
adjoining the Shopping Center during the tern of this Lease or any
part thereof; (c) before entering into this Lease the Tenant has
made its own observations, studies., determinations and projections
with respect to the Tenant's business in the Demised Premises and
all other factors relevant to the Tenant's decision to enter into
this Lease, including, without limitation, competition, market
size, sales volume, profitability and general, so-called
"demographics" -- both present and prospective; and (d) neither the
Tenant nor any representative of the Tenant has relied upon any
representation by (or any "conversation" with) the Landlord or any
representative of the Landlord with respecC to any of said factors,
and Tenant hereby expressly waives all claims with respect thereto
and acknowledges that Tenant is not relying on any such warranty,
representation or agreement by Lanalord either as a matter of
inducement in entering into this Lease or as a condition. of this
Lease or as a covenant by Landlord.
19.14 SURVIVAL: Fotwithstanding any*_hing in this Lease to the
contrary, the representations and undertakings of Tenant under this
Lease shall survive the expiration or termination of this Lease
regardless of the means of such expiration cr termination.
19.15 APPLICABLE ~W: This Lease and the rights and obligations
of the parties arising hereunde- shall be construed exclusively by
the provisions hereof and in accordance with the laws of the
Commonwealth of Pennsylvania.
19.16 CONSENTS AND APPROVALS: Whenever Landlord's consent or
approval is required herein, such consent or approval shall not be
deemed given until Landlord has provided such consent or approval
in writing. Tenant shall pay Landlord's reasonable out-of-pocket
costs, including, but not limited to, attorneys' fees incurred in
connection with Tenant's request for Landlord's consent or
approval, provided, however, that Tenant shall not be responsible
for such costs to obtain Landlord's consent or approval of anything
related to Tenant's initial opening for business in the Demised
Premises.
Where the consent or approval of Landlord shall be required,
such conser_t or approval shall be granted in Landlord's sole
discretion, unless otherwise expressly provided. With respect to
any provision of this Lease which either expressly provides or is
held to provide that Landlord shall not unreasonably withheld or
unreasonably delay any consent or approval, Tenant shall not be
entitled to make claim for, and Tenant expressly waives claim for,
damaces incurred by Tenant by reason of Landlord's failure to
comely, it beinc understood and agreed t::at Tenant's sole remedy
shall be an action for specific performance.
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19,17 AIITHORSTY: In the event Tenant and/or the Guarantor of the
Tenant's obligations hereunder shall be a corporation, the persons
executing this Lease on behalf of Tenant hezeby individually
covenant and warrant that: Tenant is a duly qualified corporation;
all stews have been taken prior to the date hereof to qualify
Tenant to do business in the Commonwealth of Pennsylvania; all
franchise and corporate taxes have been paid to date; all future
forms, reports, fees and other documents necessary to comply with
applicable laws will be filed when due; and those persons executing
this Lease on behalf of Tenant are duly cualified a_*id authorized to
bind, and in fact do bind, the corporation. The Tenant and/or the
Guarantor small deliver to•the Landlord, anon the execution of this
Lease, a Clerk's Certificat=_ or Secretary's Certificate in form
reasonably satisfactory to the Landlord, confirming that the
execution of this Lease and/or the Guarantee, as applicable, has
bean duly authorized.
In the event Tenant hereunder shall be a partnership, either
general or limited, the persons or entities executing this Lease on
behalf of Tenant heieby individually covenant an_d warrant that:
Tenant is a duly qualified partnership; all steps have been taken_
prior to the date herecf to qualify Tenant to do business in the
Commonwealth of Pennsylvania, if required by law; all franchise and
partnership taxes have been paid to date; all future forms,
reports, fees and other documents necessary to camnly with
applicable law will be filed when due; and those antities executing
this Lease on behalf of the partnership are duly qualified to bind,
and in fact do bind, the partnership.
19.18 WREN LEASE BEC02~5 EFFECTIVE: This Lease shall be
effective only when it is signed and delivered"py both Landlord and
Tenant. The Tenant's submission of a signed lease for review bjr
the Landlord does not give the Tenant any interest, right or option
in the Demised Premises. Upon such full execution and delivery,
all te*_zns, provisions, covenants and cbligations of the Harries
hereto shall be immediately in full force and effect, and
enforceable in accordance with the terms herecf.
19.19 22V'TERP?tETATSON: Both parties have read this Lease and had
the oapartunity to employ legal counsel and neactiate changes to
the Lease. The Lease is the joint produc*_ of the parties and, in
the event of any ambiguity herein, no inference shall be drawn
against a party by reason of document preparation.
19,20 3RORERS: Tenant represer_ts and warrants *_o Landlord that
no broker or agent negotiated or was instrumental in neaotT_ating or
consummating this Lease excepting only Realtor, as set forth in
Section 1.1 (P). Realtor is representing Landlord or. this Lease,
and Realtor's commission shall be paid by Landlord. Tenant knows
of no other rear estate broker or agent who is or might be entitlsd
to a ccmmissior. or compensation it connection with tixis Lease. All
fees, commissions cr other comnensatioa pa/able to any broker or
_c3_
agent.oi Tenant shall be paid by Tenant. Tenant shall hold
Landlord harmless from all damages and shall indemnify Landlord for
all damages paid or incurred by•Landlord resulting from any claims
asserted against Landlord by brokers or agents claiming through
Tenant, Tenant acknowledges that Tenant has been informed that
person(sl associated with Realtor may have or may acquire an
ownership interest in the Shopping Center, and Tenant acknowledges
by signing this Lease that such ownership interest shall not affect
the terms, conditions or validity of this Lease,
19.22 LANDLORD'S FEES AND EXPENSES: Unless prohibited by applic-
able law, the Tenant agrees to pay to the Landlord the amount of
all legal fees and expenses incurred by the Landlord arising out of
or resulting from any act or omission by the Tenant with respect to
this Lease or the Demised ?remises, including without limitation,
any breach by the Tenant of its obligations hereunder.
Further, if Tenant shall request the Landlord's consent or
joinder in any instrument pertaining to this Lease, the Tenant
agrees promptly to reimburse the Landlord far the legal fees
incurred by the Landlord in proc=sing such request, whether or not
the Landlord complies therewith; and if the Tenant shall fail
promptly so to reimburse the Landlord, same shall be deemed to be
a default in the Tenar_t's monetary obligations under this Lease.
19.22 OTHER AGREEMENTS: The Tenant hereby
that neither this Lease nor the cneration
hereunder violates the provisions of any i
executed by the Tenant or any affiliate of
without limitation, any so-called radius x
any such instrument.
warrants and represents
of the Demised Premises
nstrument heretofore
the Tenant, including,
estriction contained in
19.23 SHIFT CLAUSE: Intentionally Omitted.
ARTICLE XX: SECURITY AND RENT DEPOSITS
20.01 AMOUNT OF SECURITY DEPOSIT: Tenant, contemporaneously with
the execution of this Lease, has deposited witz Landlord the sum
set forth in Section 1.1 (K) as the Security Deposit, the receipt
of which is hereby acknowledged by Landlord. The Security Deposit
shall be held by Landlord for the duration of the term hereof,
without liability for interest, as security `_or the faithful
perfor;nance by Tenant e= all the terms, covenants, conditions and
oblications of this Lease by said Tenant to be kept and performed
during the term hereof. Tenant specifically agrees that any deposit
held 'Hereunder by Landlord may be cammirgled with any other funds
of Landlord.
20.02 USE AND RETURN OF SECURITY DEPOSIT: Should Tenant fail to
keep or perform any of the terms, covenants, and conditions cf this
Lease to be kept and perfo_med by Tenant, Landlord may apprepriat=_
and apply the ent_r=_ Security Deoosit, or so mucr_ thereof as may be
necessary, to COm7e.^.Sat_ Landlor~ moo: loss Or GHmaCe sustained }Jy
La.^.~G:O~d dL`e ~.. SuCn D=°?C n, 41~ChCL't ^v:a~L..=Ce t0 1t5 i'STC:1°-=
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rights and remedies. Should the entire Security Deposit, or any
portion Chereof, be appropriated and applied by Landlord in
accordance with the provisions hereof, then Tenant shall, upon the
written demand of Landlord, forthwith remit to Landlord a
sufficient amount in cash to restore said deposit to the original
sum deposited.
Landlord shall have the same rights and remedies for the non-
payment by Tenant of any amounts due on account of the Security
Deposit as Landlord has hereunder for the failur=_ of Tenant to pay
the Minimum Rent. Provided Tenant shall not then be in default,
Landlord shall return the Security Deposit, without interest, or so
much thereof as shall not have theretofore been applied in accord-
ance with the terms of this Article XX, to Tenant within 30 days
after the last to occur of: (i) the expiration or earlier termina-
tion of the term hereof or (ii) the surrender of possession of the
Demised Premises by Tenant to Lanalord. Notwithstanding the fore-
going, if the amounts to be paid by Tenant to Landlord, such as
Percentage Rent for the last lease year, Tenant's pro rata share
of Real Estate Taxes, or the like, have not been determined as of
the expiration or earlier termination of this Lease, then Landlord
may retain such portion of the Security Deposit as Landlord be-
lieves in the exercise of Landlord's good faith judgment is an
appropriate reserve against such future liability of Tenant and
return only the balance of the Security Deposit pending the final
determination and payment of all such amounts by Tenant to
Landlord.
If Landlord conveys Landlord's interest ur_der this Lease, the
Security Deposit (or any part thereof not previously applied in
accordance with this Article XX) may be turned over by Landlord to
Landlord's grantee, and, if so turned over, Tenant agrees to look
solely to such grantee for proper application of the Security
Deposit in accordance with the terms of this Article XX, and the
return thereof in accordance therewith. The holder of a mortgage
on property which includes the Demised Premises shall not be
responsible to Tenant for the return or application of any such
Security Deposit, whether or not it succeeds to the position of
Landlord hereunder, unless such Security Deposit shall actually
have been received by such holder.
20,03 RENT DEPOSIT: Tenant, cunt=_mporaneously with the execution
of this Lease has deposited with Landlord the sum set forth in
Section 1.1 (L) to be held and applied to the first month's rent
due under this Lease.
AI2TZCLE XXI: TENANT COVENANTS. EASEMENTS
21.01 TENANT COVENANTS: Notwithstanding any*_hing to the cgntrary
contained herein, this Lease is subject to and made on the
understanding that Landlord has Granted and/cr will grant certair.
restrictions and exclusive use covenants to ether tenants of the
-45-
Shopping Center (herein the "Tenant Covenants"). Teaant
acknowledges that Tenant's use and/or occupancy of the Demised
Premises in violation of any current or future Tenant Covenants
would subject Landlord to substantial. damages and as such Tenant
acknowledges and agrees that any such violation by Tenant of any
such Tenant Covenants shall constitute a default hereunder
entitling Landlord to cancel this Lease or enjoin Tenant from
violating such Tenant Covenants, or exercise any of the remedies
stated in Azticle XIV hereof and any other remedies available
under the law of the Commonwealth of Pennsylvania., Nothing
contained in this Section 21.01 .shall be construed to permit
Tenant to expand the use restrictions set forth is Section 1.1 (M)
hereof. Landlord hereby states that Tenant's use clause as defined
in Section 1.1 (M) does not and will not violate any Tenant
covenants granted to other Tenants of the Shopping Center.
21.02 EASEMENTS: The Shopping Center is and/or may be encumbered
and/or benefitted from time to time by certain easements,
development and operating covenants, and similar agreements.
Tenant agrees that it shall abide by any such agreement, including
any such agreement as may be amended from time to time in
Landlord's sole discretion. Landlord shall have the right to enter
into and/or terminate any such agreement in Landlord's sole
discretion.
IN WITNESS WHtREOF, Landlord and Tenant have executed.this
Lease as of the day and year first above written.
Signed, Sealed and Delivered
in the presence of:
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LANDLORD:
SILVER SPRING CENTER LIMITED
PARTNERSHIP
By: ABS Development Company, its
General Partner
By:
ames H. Shulman.
is Executive Vice ?resident
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EXHIBIT A-1
~; LEG,AL DESCRIPTION
A.8.5. - 53.2436 ACRES
BEGINNING at a point on the Northern right-of-vay line of U.S,
Route '{11 (Carlisle Pike) at the intersection of the Northern
tight-of-vay line of U.S.Route X11 (Carlisle Pike) and the Eastern
right-of-vay line of Traffic Route. X114 (Hogestavn Road); thence
along the Eastern right-of-vay Iine of Traffic Route ill<
(Hogestovn Road) on a curve, curving to the left having a radius of
928.51 feet, an me length of 226.65 feet to a point; thence along
same, North 19 degrees 17 minutes 30 seconds west, a distance of
142.76 feet to a point; thence along same North l0 degrees 45
minutes 39 seconds West, a distance of 202.24 feet to a point;
thence along same North 19 degrees 17 minutes 30 seconds West, a
distance of 245.00 feet to a point on the Southern right-of-tea}•
line of Sporting Green Drive; thence along the Southern right-of-
vay line of Sporting Green Drive, North 70 degrees 42 minutes 30
seconds East, a distance of 116.56 feet to a point; thence along
same on a curve, curving to the left, having a radius of 330.00
feet, an arc length of 204.31 feet to a point on the Southern znd
Eastern right-of-vay line of Sporting Green Drive; thence along the
Eastern tight-af-vay line of Sporting Green Drive, North 35 degrees
14 minutes 10 seconds East, a distance of 225.06 feet to a point;
thence along same, North 29 degrees 31 minutes 32 seconds East, a
distance of 50.25 feet to n point; thence along same on a curve,
curving to the left, having a radius of 325.00 feet, an arc length
of 217.34 feet to a point; thence along same, North 03 degrees OG
a,inutes 45 seconds West, a distance of 404.46 feet to a point;
thence along same on a curve, curving to the right, having a radius
of 275.00 feet, an arc length of 236,97 feet to a point; thence
along same, North 46 degrees 17 minutes 35 seconds East, a d?.stance
of 25.94 feat to a point on the Western line of lands of Sporting
Green Associates; thence along lands of Sporting Green Associates,
South 43 degrees 42 minutes 25 seconds Enst, a distance of <63.00
feet to a point on the Southern line of lands of Sporting Greer.
Associates; thence along the Southern line of lands of Sportine
Green Associates, North 70 degrees 59 minutes 50 seconds East, a
distance of 327.60 feet to a point on the lov voter mark of the
Conodoeuinet Creek; thence along the lov valet mark of the
Conodoguinet Creek, South 60 degrees 02 minutes 02 seconds East, a
distance of 66.53 feet to a point on the Western line of lands no:
or late of Christian E. and Sarah E. Thomas; thence along the
Western line of lands nov or late of Christian E. and Sarah E.
Thomas, South 00 degrees 59 minutes 04 seconds west, a distance o:
338.50 feet to a point on the Southern right-oL-vay line of Cree!
Road; thence along the Southern right-of-vay line oL Creefi Road:
North 83 degrees 35 minutes 39 seconds East, a distance of 36<.1=
feet to a point; thence along same, North 7S degrees 43 minutes 51
v.......... _~.~ ...,, _ h
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seconds East,. a distance of 31.40 feet tc. a point on the Western
right-of-vay line of Silver Drive; thence along the Western right-
of-vay line of. Silver Drive, South 13 degrees 33 minutes DS seconds
East, a distance of 864 75 feet to a point on the Northern right-
of-vay line of Circle Drive; thence along the Northern right-of-vay
line of Circle Drive, South 86 degrees 18 minutes 57 seconds West,
a distance of 210.58 feet to a point on the Western line of Iands
aov or late of James Pagliaro extended; thence along the Flesterr,
line of lands nov or late of James Pngliaro, South 00 degrees 46
IIinutes 57 seconds West, a distance of 382.87 feet to. a point or
the Northern line of lands nov or late of Lhe Silver Sprinc
Community Fire Company; thence along the Northern line of lands nog
or late of the Silver Spring Community Fire Company and the
Northern line of lands nov or late of Richard L. Radabaugh, Sout.
88 degrees 31 minutes 30 seconds West, a distance of 400.74 feet t
a point on the Western line of lands nov or late of Richard L ~
Radabaugh; thence along the Western Line of lands nov or late c
Richard L. Radabaugh, South 00 degrees 59 minutes 04 seconds i:est
a distance of 157.69 feet to a point on the Northern right-of-va
line of U.S.Route X11 (Carlisle Pike]; thence along the Norther
Tight-of -vay line of U.S.Route X11 (Carlisle Pike) on n curve
curving to the left, having a radius of 5,779.65 feet, an ar a
length of 252.33 feet to a point; thence along same, South F 1
degrees 30 minutes 30 seconds west, a distance of 227.77 feet to I,
point; thence along same, North 84 degrees 29 minutes 30 seconc ~
West, n distance of 30.00 feet to n point; thence along same, Sou°,
85 degrees 30 minutes 30 seconds west, a distance of 547.64 feet
a point, said point being the place of beginning. +',
COhTAINII:G 53.2436 acres.
Excepting t-~~e~-aa the pzcel of land descibe8 he:ea_`ter:
tLC2xf+IHC at a pe{ne en U• Yorh•rn ri72+t-ef-~nr 13r• et
Q.3.1ove• 11 •a !d -aint l..lnq U• twtL.•0tarn eorn•r of out -are•1
!•; Lh•nea along Ua ter.~•rn zl*7tt~a!-var of O.i.aout• 11 Yy •
vu.^v, ev:'rinq Lo U• Laft, Aarl,nq a sadlu• sf 1,770, t3 t••t and an
ast 1•ngtl et 103.11 !••t to a }o1nL7 U•nt. eontir+nirq along taa•,
iw tS 1! d.q:•u JO tit+vtu 30 a•cerY:a Yu t, a dlaune• •f OI.Ii
!•at Lo t11• IoutSaaOL•rn corner of Out -arcal /3! th•nc• alen( but
lasc•1 /7 lry • cut-.+, aur•inq to ti• 1•tt, larirp a radius at tp.00
!••t and an era 1•ngtA Dt 71.11 !wt to • }oLnti t~anea oontLnulnq
along taa•, Yort~f 0. d^q-^•• 1f tlreutar 70 f•eandt Y••t, • d1tLa.na•
•f 110.00 !a•t to a point; U•nt^ 0wgtinulnq alerq •as., /oat..f' Ot
daq-••a JO ainvLu i0 a•r~nd.a Y•rt, a d1a4 na• of 171.37 ta•t to
L.et tl) thanes along G0C /1 tna telloYlnq cou.-s^1 -nd /114nei+,
1) aorta Ot d.grws It alm+t•• 70 IacDrfda Y•st, a ll•tane•
at 313.17 test,
21 trtor..a IS d•gru• l0 >.lrmt•s )0 a•eonea L•t, a ti~tanea
•f {00.11 j-•t,
J) OovL1 OC l-gr.•1 00 LlNL•• 10 •aeerd.a Y•tt, a dl:unea
of a0.10 !••t,
•
•) Oeuth IO d.Tr,.. 00 alnvt•s 00 awoncl: Ltat, l tista%o:
!) MorL~ OD ar..• eo airn+tu ae ••eonds Y•at, \ lituti.•
et 77,71 a•e+
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a) aoaVf,to 0K;T1.t• DD alnvtas oo ascend. T.a.c, a t.!,et„ca
of STt.01 L•.t, .
7) IoutJ o0 1.q-••s 00 tti nutaa DO ncond^ Y.at, - dl0t.tnc•
of 77,71 Last,
t) toutn tC a~C^;ut OD L'rnJt~^ Ot 1.c•nda Lat, a IL`.~.ne•
o[ 11).11 L-+t to a -olrtt •n ~.1i• ri.taCn i lg h t-e(-.nr
11n• oC Ill'nr ?rl~ .l
tsene• alenq tna iastazn right-et-+~+Y llna eL {Slra! Drire, {eut,E
17 degzesa I7 ainutas 03 •ecenda Zast, a diatanca •t lfl.7f feet to
ta• lteruertt lino et lands nev er late at Jaae• paglle=ei taanes
slang lands ne.r er late et pagliare, tevta It degzae• St alnutoe !T
eeoanda east, • diatanes st l10.la feet to • poSnt; Laanea
eontZzuinq alenq sass, tenth DO degrala tt ^lrutaa f7 •tesnds facet,
a dlaeanea of Ial.t7 teat to tA• ltortA•t7f Line et lands acv lz•lata
et tb• iilraz tprlnq Se.maalp Ills tbapanrl tamp •lalsq W
Mertaeza lln• et lands eL tJ+• tlS~ar tprinq 2ernshlp 11rs CsapanT
an6 Ricaard L. ltadaDaugn, loofa tt degrsaa 31 ainutaa 30 seconds.
qaL, a dlstsnat •t t00.Ta leeC !e tSf• Itertbaastarn asrnaz •! Oxtt
1-real /a; th.nu Alenaa Out f'arval ~i, koztn a3 dagrsaa 73 ainafw
SD seconds treat, • lSseano• •! 7t.10•~aat to a petatt t0ana
osntinuinq alenq fs.aa testa 13 deq-:iaa 30 linvtas 70 aapnds teat,
• dlstincs e! 113.31 laetl tSeaw CentiMlty ^lanq sass touts Oa
dr7:eaa.2f alntJt+a 70 •acands Lart, a.dSatanes •t 1t0.f7 tart is a
pit+tt tLencs trt a Ovr4~, ectTinQ fa tas lot[, Sari3a t rsdi~w aL
o.DO fact as+d ar aro 1•nq~.a bt i7t{I fae~0 ie a pei.n{i ~a.ld paint
acing tan 'Saes •d~ -+gi,nt+lrq.r ..
a~z1.9r lxs, l t j . ! ~ r' Z I t~a'~ re. t;,ba~ ,~~.o.i.
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LANDLORD'S WORK
Landlord's Work is limited to the work described herein. All __
work not classified as Landlord's Work is Teaant'a stork.
2. Landlord shall i-sstall a minimum of 25 tons o£ HVAC,
including ducting and distribution, in the Demised
Premises.
2. Landlord shall install one 2200 CFM roof mounted exhause
fan with ductwork to ceiling and two 12 x 12 eggcrate
ceiling grille.
3. Other than Landlord's Work as set forth above, Tenant
agrees to take Delivery of Possession of the Demised
Premises in its ~resert "as-i~^ condition.
Miscel,7,aneous -
Landlord shall pay to Tenant a terranc improvement allowance of
$10,000 upon the later of: (a) comnle*_ion of Tenant'a Work, or
(b) Tenant commencing to actually pay reaE hereunder, and
provided that Tenant shall have certified to Landlord that
Tenant hae expended at least 510,000 on its Te_-iant Work in as
Application far Payment. Such Application for Payment shall
be accompanied by waivers o: liens and other documeataeion
from Tenant's Contractor, and all Subcontractors and fiub-
subcentractors as may be reasonably required by the Owner. In
addition, such Application for Payment shall contain a
certification by the Tenant that all Contractors,
Subcontractors and Sub-subcontractors have been paid in full
for their wcrk and no written claims of mechanics' or
materialmens' liens have been submitted to the Tenant as of
the date of such Application fcr Payment, that the Contractor
has no knowledge of any filed mechanics' or materialmens' Iien
with respect to Tenant's Work, and that there is no known
basis for the filing o£ any mechanics' or materialmens' liens
on Tenant's Work.
EXHIBIT C
PERCENTAGE RENT STATEMENT
[Date]
Silver Spring Center Limited Partnership
c/o ASS Development Company
410 Asylum Street, Suite 215
Hartford, CT 06103
RE: Percentage Rent Statement for
month of 19
Gentlemen:
Reference is made to our lease dated 1991 for
certain premises located in the shopping ce::ter known as Silver
Spring Commons, Silver Spring, Pennsylvania (tr_e "Lease"). This
statement is being provided to you pursuant to Section 2.6 of the
Lease. Terms utilized as defined terns herein shall have the
meanings as defined in the Lease.
For the calendar month ending 199_, total
Gross Sales from the Demised Premises ecua'_:ed $
Therefore, total Gross Sales from the Demised Premises for the
current calendar year total $ through said date. I
hereby certify that I have carefully reviewed the books and
records of Tenant relating to the Gross Sales figures set forth
above, and that the same are true and correct to the best of my
knowledge and belief.
Very truly yours,
[Tenant]
I
EXHIBIT D
RULES AND REGULATIONS
Tenant agrees as follows:
1) All loading and unloading shall be through the rear entrance
service door or other designated entry specified by Landlord.
2) All garbage and refuse shall be kegt in a container that has a
lid capable of totally fitting over the opening and shall be kept
in such a sanitary condition as to prevent vermin, insects and
offensive odors.
3) Tenant shall not bum trash or garbage of any kind in or about
the Demised Premises.
4) No radio, television or other communication or electronic
device shall be installed by Tenant on the roof, any exterior wall
or common area of the Shopping Center without Landlord's consent
thereto in writing, which consent shall be in Landlord's sole and
subjective discretion.
5) No loud speakers, television, phonograph, radio or other noise
making device may be used in such a ma_*sner as to be heard outside
the Demised Premises without Landlord's consent thereto in writing,
which consent shall be in Landlord's sole and subjective
discretion.
6) Tenant shall maintain a temperature sufficier_tly high to.
prevent freezing of water in pipes and fixtures.
7) Tenant and Tenant's employees shall park their cars and other
vehicles only in those areas designated for that purpose by the
Landlord, and Landlord shall have the right, at all times, to
imDOSe fines uDOn Tenant or to tow such cars or ot'rer vehicles that
fail to comply with this regulation at Tenant's sole expense.
8) T=_nant shall install and maintain fire extinguishers per local
and state codes.
EXHIBIT ~
5~6~~TERIA
PItI_rsARY TENANT SIGH
A. The Primary Tenant Siga shall consist of individual internally
illuminated channel letters mounted to the face of the canopy
and secured to the plywood sheathing as provided in the
different canogy conditions. The letters shall be wi.zed
through the canopy (provide watertight seals at each
penetration of the canogy suzface] to an enclosed transformer
box mounted above the canopy soffit. The sign unit shall be
complete and tested prior to installation of the canopy.
B. The Primary Tenant Siqn unit shall be comprised of all
individual letters, within the Signage Space above the Demised
Premise,.
C. A.I1 individual letters shall be fabricated with .653" aluminum
returns, 4" deep minimum, welded to a .090" back. Provide a
routed exterior finished edge. Interior seam shall be filled
and caulked to seal from water penetration. The 4" aluminum
returns of the channel letters shall be painted Grip-Guard
paint by S~iyandotte products. wing holes shall be 7/8" opening
and mounting holes s1zall be 1/'4" opening. Channel letter
faces shall be fabricated from 3/16" translucent colored
Plexiglas. Provide a one 1" high plastic ("jevrelite"} trim
edge band alI around. Screws shall be painted to match t2:e
trim edge band.
D. All signs shall have concealed aluminum attachment devices,
concealed electrical wiring and shall be designed and
fabricated in accordance with the local sign ordinances and UZ
construction requirements. Each letter of the sign units
shall be internally illuminated with 15mm double stroke neon
tubing wired through watertight flex material conduit to t
transformer box. A transformer box enclosure shall be .06:
gauge aluminuma•mounted inside the canopy. A junction box wil:
be supplied at each Demised Premises by Landlord and al
wiring to junction boxes shall be concealed and enclosed i
metal conduit.
E. Tenant shall install, at i.ts own expense, one under canopy
sign in accordance. with the attached drawing labeled "Unde_
Canopy Sign."
EXFiIBTT F
TENANT'S WORK
APPROVAL PROCEDURE:
The Landlord will provide Tenant with scale drawings showing the
general features of the Demised Premises and locations of toilet
room, air ducts, electrical outlets, and spri-ilcler system (if
installed).
Tenant shall supply Landlord with Tenant's interior working draw-
ings and plans prior to making any alterations or improvements to
the Demised Premises. The Landlord reserves the right to approve
such plans for the purpose of insuring such planned changes will
not overload the existing electrical system, degrade the air flow,
sprinkler system, or weaken the structural integrity of the Demised
Premises or otherwise be detrimental to the Demised Premises or the
adjoining stores in the Shopping Center, and to make sure that such
plans conform to the architectural design standards of the project.
Such approval shall not be unreasonably withheld and shall be
promptly responded to by Landlord, Landlord's contractor and/or
architect.
All Tenant's work shall be at Tenant's expense.
Work undertaken by Tenant shall be handled in the following
manner:
a. Structural alterations such as plumbing, electrical work,
additional walls or bathrooms, vents, grease traps etc., may be
awarded to any operating licensed contractor approved by state or
local authority and whose livelihood is derived primarily from
such work.
b. Construction personnel hired by Landlord may be used by
Tenant, at Tenant's expense, to complete some or all of Tenant's
interior upfit, providing such additional employment will not
conflict with the Landlord's completion of the Shopping Center
and Tenant enters a separate agreement wi*_h the contractor.
Landlord will not be responsible for or obligated tc Tenant or
contractor to intercede on either parties behalf, should disputes
arise over work or payment thereof.
TENANT P.DDITIONS:
The following work, should Tenant desire, shall be done at
Te^ant's expense.
1. Installation and service cost of telephone.
2. Installation of a intercom, radio or T.V, and associated
wiring.
3. Ceiling light covers not standard to project.
4. Display window platforms, elevated floors, room partitions
or special rooms.
S. Store signs.
6. Automatic doors.
7. If approved, any special exterior fascia treatment, and any
stained, etched or covered glass or doors.
8. Complete plans showing all details of interior design,
electrical and mechanical items which affect Landlord's
work, if required by Landlord in order to prepare
preliminary plans, including special venting or air handling
equipment necessary for tenants occupancy and use.
9. All interior walls and curtain wall within the Demised
Premises except as provided by Landlord's work.
10. All signs ir. or on the Demised Premises including
construction, furnishing and installation. No sign shall be
erected without prior written approval of the Landlord or
Landlord's architect.
OTHER: Tenant may add to this list at Tenant's discretion, so long
as any such improvements are coordinated with the Landlord
beforehand.
(58/24-pet)
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PURCF~~ AND SALE_AG~R.EEMENT
THIS PURCHASE AND BALE AGREEMENT (the "Agreement") is made and
executed thus 28th day of June, 1998, by and between the Silver Spring Center
Limited Partnership, a Connecticut limited partnership with ofaces at Suite 2575,
one Atlanta Plaza, 950 East Paces Ferry Road, Atlanta, Georgia 30826 (the "Seller')
and Silver Spring Commons Holdings, Inc., a Pennsylvania corporation with offices
at Suite 200, 259 Radnor-Chester Road, Radnor, Pennsylvania 19087 (the "Buyer").
WHEREAS, Seller is the owner in fee simple of the real estate more
particularly described on Exhibit "A" attached hereto and incorporated herein by
reference, the buildings, improvements and structures thereon (except far .the
buildings, improvements and structures located oa that part of the Real Property
which is subject to ground leases) and the- easements, access rights, and
appurtenances and hereditaments thereto (all being hereinafter coIIectivelq referred
to as the "Real Property"); and
WHEREAS, Seller is the owner of the personal graperty more particularly
described as Exhibit 'B" attached hereto and incorporated herein liy reference,
located on and used in connection with the Real Property (such personal property
being hereinafter collectively referred to as the "Personal Property"); and
WF!}LREAS, the Real Property and the Personal Property comprise a two ,
hundred sixtq rune thousand three hundred two (269,302) net rentable square~foot
shopping Centex on thirty-seven and nine hundred four thousandths (37.904) acres
more ar less which are located on the Northeast corner of United States Route 11 and
Pennsylvania l;oute 114 fn Silver Spring Township, Cumberland County,
~~• Pennsplvania and lmown as Stever Spring Commons; and
WFlEREAS, Seller is the landlord undei the tenant leases and ground leases
affecting the Property, which ground leases and tenant leases (there are no subleases
lalowri to or approved by Seller except as permitted in the Amendment of Lease dated
July 14,1994 between Seller as Landlord, and M.J. Todd, Inc. as Tenant) are listed
and described on Exhibit "C° attached hereto and irieorporated herein by reference
(the "leasesAr and
WHEREAS, Seller has entered into and is the obligee-under certain service,
supply, xnaintznance, leasing and management agreements ff any affecting the
Personal Property and the Real Property which service, supply, maintenance; leasing
and management agreements are listed and described on Exhibit "D" attached hereto
and incorporated herein by reference (xbe "Contracts'; and
WHEREAS, Seller is the owner of certain rights and benefits Telating to the
Property, including all development rights, permits, licenses, warranties Cu-cluding
but not limited to the roof warranties contained on Exhibit "L° attached hereto and
incorporated herein by reference), guazaatees, indemnities and deposits, (these rights
s
;~
of Seller's counsel acquired by Section 6.5(aXvSi) hereof may be rendered under
Connecticut law.
11.6 Time is of the Essence. Time is of the essence with respect to each and
every provision of this Agreement.•
11.7 ~rformance on Business Davs. If any date for t]~e occiurence of any
event or act under this Agreement falls on a Saturday or Sunday nr legal holiday in ;
the Commonwealth of Pennsylvania, then the time for the occurrence of such event
or act shall be extended to the next succeeding business day.
11.8 Entire Agreement. This Agreement, together with all the ExhSbits
attached hereto and incorpoxated by reference herein, constitutes the entire
undertaking between the parties hereto, and supersedes any and all prior
agreements, arrangements and undertakings between the parties.
11.3 Counterparts. This Agreement may be executed in any number of
identical counterparts by the parties hexeta, each of which shall collectively constitute
nne agreement. but in mating proof of this •Agreement, it shall not be necessary to
produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed the day and year above first written, intending to be legally bound
hereby.
SELLER:
SILVER SPRING CENTER
LIMITED PARTNERSHIP
By: AIiOLD REAL ESTATE OOMPANY
Its'only gener partner and its
duly autho%gent
Name: NGisvs R.+A'e
Title: ~,ug;,,e{,~.~
BUYER: .
,SILVER~S~P/R-ING COI~SMONB HOLDINGS, INC.
By: G,U~~~"~~cc~v~-
:-qPR-29-1999 10 46 MOR a9r! L'cWI S P4I LaDELPHI q 215 963 5293 P, 0212
ASSIGNIVSEri'T AND ASSUMPTION OF LEASES
This Assignment and AssumptioA of Leases (" .' ent") is entered into as of
this ~ day of January, 1999, by SILVER SPRING COMMONS HOLDINGS, INC., a
Pennsylvania corporation, with an address clo 259 Radnor-Chester Road, Suite 200, Radnor, PA
19037, Attn: Kathleen Hands ("Assignor"), and EASTERN RETAII. HOLDL\GS LIMITED
PARTNERSHIP, a Delaware limited partnership, with zn address of LMRES Real Estate
Advisers, Inc., c/o Legg Mason Real Estate Services, Inc.,1735 Market Street,l2th Floor,
Philadelphia, PA 19103 (" ssi "). For valuable oonsideration, the parties hereto, each
intending to be legally bound and to bind their respective successors and assigns, hereby
covenant and agree as follows. -
Bac • d
A Assignor is the owner of That certain real property Imown as Silver Spring
Commons Shopping Center situated in the Township of Silver Spring, County of Cumberland,
Pennsylvania (the "Real Property'. The Real Property is more particularly described on Exhibit
attached hereto and made a part hereof. .
B. In wrmection with the contn'bution of the leasehold estate in the Real
Property pursuant to thzt certain Contribution Agreement, dated as of December 30,1998 (the
"Agreement', by and among Assignor, as contributor, and Assignx, as acquiror, Assignor has
agreed to assign its interest in the leases pertaining to the Real Property to Assignee, and
Assignee has agreed to assume and accept the same.
NOW, THEREFORE, in consideration of the premises, the promises and conditions
contained herein and in the Agreement, and other good and valuable consideration in hand gaid
by Assignee, to Assignor, the receipt and sufficiency of which are hereby aclmowledged, the ..
parties agree as follows: .
1. Assignor hereby assigns, transfers and sets over unto Assignee, and
Assignee hereby accepts, all Assignor's rights, title and interest in and to those certain leases,
which are listed in Exhibit "B" attached hereto and made a part hereof (" as s"), which
Leases ptrtain to various portions of that certain Aeal Property which Assignor has
~-~• contemporaneously herewith conveyed ante Assignee. This Assignment includes (i) all
sureties and guaranies of the Leases, (ii) the right to collect from all tenants under the Leases
(collectively, " errant ") all rents and other payments whether heretofore or hereafter payable
(to be applied as set forth in the Agreement), (ih~ the right to enforce all obligations of the
Ta,2L25478.1
. ' _PPR-28-1999 1247 PIORC~`I LEWIS PHILgDELPHIq 21~ 963 5299 P.03''12
Tenants under the Leases and all sureties and guaranties, and (iv) art security deposits paid by
the tenants under the Leases.
2. Assignee hereby assumes and agrees to perform all agreements and
obligations of the ~Iandlotd with respect to the Leases arising on and after the date hereof.
However, Assignor, and not Assignee, shall be responsible for the observance and
performance of all agreements and obligations of the landlord with respect to the Leases
arising prior to the date hereof.
3. ?clothing herein contained is intended to create agreements or obligations
of the landlord to any Tenant under any Lease.
4. Assignor shall defend, protect, indemnify and save harmless Assignee
from and against any and all ]iabilities, suits, actions, losses, damages, cosu and expenses,
including without limitation wunsel fees, suffered or incurred by Assignee resulting from or
relatitg to any failure by Assignor to observe or perform nay of its agreemcnts or obligations
under the Leases prior to the date hereof. Assignx shall defend, protect, indemnify and save
harmless Assignor from and against nay and aII liabilities, suits, actions, losses, damages,
costs and expenses, including, without limitation counsel fees, suffered or incurred by
Assignor resulting from or relating to any failure by Assignee to observe or perform any of its
agreements or obligations under the Leases on or after the date hereof.
[Execution Page FallowsJ
:w;
RPR-29-1999 10=47 MORGRN LEWIS PHILADEL,°HIR 215 963 5299 P.04i12
1N WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date first above written.
SILVER SPRING COMMONS HOLDINGS, IlVC.,
a Pennsylvania cotporati//n
sy: ,,~arrX . l~~'
Name: ~lQVlC I/. S~pG~
Title: ytc~. ~°~ESIaLnrY
EASTER*1 RETAIL FIOLDINCiS LIMITED
PARTNERSHIP, a Delaware limited partnership
Sy: LM,RES Real Estate Advisers, Inc.,
its general pattrter p
By: • ~~-
Name: J~vcd V. T~-corn
Title: t/ICF P,easralvr
~.
rx~ursue.~ . '3'
n °
' RPR-29-1999 1049 MORGRN ~EWIS PHILRDE~PHIR
EXHIBIT "A'!
, -
_ wRPR-28-1999 10~a9 PKIRGFW LEWiS PHILRDELPHiR 215 953 5299 P.96/12
~~ ,•
..
• SC~DQLE A
Legal Description '
Lot No. 2
Suver Spring Gammons •
A11 that certain lot, tract or parcel' of land situated in
Silver Spring Township, Cy~mborland county, pannsylvania; mounded
and described as•rollows:
SegiaaiaQ at a point on the eastern right-vl-way line of s.R.
0114, said point' being located ono hundred eighty and Fifty-six
hundredths t'eet tsorth of the northern right-ci-way Tina oP the
Carlisle pike ((S.R. 0011); thence tzam said point of 8agianiag, by
t2ia eastern right-ol-way line of 5.R. Olid, the Following Souz t4)
courses i)' by a curve to the loft, having .a radius of nine hundred
twenty-eight-and !iffy-one hundredths Peat (8 = s28.Si'), an arc
distance at forty-six and nine hundredths Eaet (AJz :`46.09') z)
North nineteen degrees, savetiteen aiiautgs, thirty aeeonda 41est (N
i9' 37' 30+' W) a distance of one hundred lorry-two and seventy-six
hui:drndths feet (112.76') 9) North ten degrees,,forty-five Sainutes,
thirty-nine seconds West {N l0°15' 39" w) a distance of two hundred
two and twenty-four hundredths feet (2o2.2t') 4) North riin+ateen
degrees, seve3sbeen minutes, th3.rtiy yoeorids. Waet (N 19' Z7' sa" YI)
a distance of two hundred forty Peet {210.00') to a point, thence.
by-the southern right-of-way lice oP Sporting Green Drive, the
following #iva (5) courses i) North sixty-eight d s, tiftaan
ari.riutts, seven saeands East (3t 68'• 13' off" e) a stance of one
hundred sixteen an8 sixty-seven hundredths feat (37.6.aT') z}.by a
curve to the left, having a radius of three hundred th3.rty Past {]2
s 330.00+}, an szc distance oP two hundred lour and thirty-one
hundredths feet (204.31') 3) North thirty-#iva degrees, fourteen
minutes, ten seconds East {27 35° Si' 10'! E) a distance of two
hundred twenty-five and six hundredths feet '(225.Gfi') 4) North
twenty-nine $egrees, thirty-ono minutes, thirty-two seconds East {N
~29° 33' 32" B) a•distance of fifty and twenty-five hundredths Peet
(50.25') 5) by a curve to the left, havin5 a radius of three
hundred twenty-five feet (R 325.00'), an era diStaACe of two
hundred seventeen•.and thirty four hundredths feet (A/h =
217.34')to a point; thence by the southern right-o£:*ray line oP
Sporting Green Drive and by hot No. 1 Horth three degrees, four
minutes, forty-live seconds west (N oa° 04' 45" W) a distance oP
Four hundred Pour acid Forty-six hundredths 4teet ({oa.as°) to a
point; thence•by Lot No. i the Fallowing Five (5} courses. l) by a
aurva to the right, having a radius of two hundred seventy-Five
Feet (A s 275.00') an arc distance of seventy-nine and fifty-two
hundredths Yeet (AjL = 79.52') Z} Due East {N 90' cot oa" E) a ., ~.
distance of two hundred forty-ono ,and ni,ncty-Wino hundredths feet
(21i-99') 3) South Forty-three degrees, tarty-two minutQS, twenty-
-five seconds East (13 13° 12' 25" E) a distance of one hundred twenty
and ten hundredths feet (.120.].0') 9) 5outih eigrity-six deg>:ees,
twenty-Pour minutes, tozty-five seconds East (s 88' 28' 45" E) a
d3,stence of eTe-hundred seventy-fouK'ahd nicety-two hundredths Peet
~zsYT „A,s eoo~ .x.43 PacF ~~~
.-,...~.~_. ._..., ,. ~.,.,.~...~. -._..- ...- r. -
_..
' RPR-28-1999 10 49
~~
...
MORGRN LEWIS PHILAPElPH1R
SC:~DII~ A COMTIAIIED
215 9e3 5299 P.07i12
(i7b.92'), (sxrorisously ahawn on plan as xorth eighty-six degrees,.
twenty-live minutes, forty-eicht,s~conds East a distance of o)la.-
hul3dred severity-four and ninety-one hundredths feet) 5) North
ei',ghtY-fou! depress, t~-enty-two minutes, seven seconds East (N 84°
22' 07" 8} a distance vt taro hnndrad twenty-seven and thirty-seven
hundredths Legit (227.37')to a point at or near the top of bank of
ttie Conodoguinet creaki thence dove said eree}e south sixty degrees,
two atinutes, two seconds East {8 KO' az' 02" x) n dictanoe of .
eighty-six Snd fifty-three hundredths feet (x6.53') to a point;
thence by lsusd no':- or late of Christian and Sara Thomas South .zero
depress, ff.fty-nine ninutas, four seconds Wast (S ao°.59' aa" 3t) a
distanae of three hundz'ed 'thirty-eight and fifty hundredths, feet
(338.50') to a point on the aeuthart+ right-of-way line of Creak
Dziva; thence byy said right-of-way the lolloving two {2) courses 1)
xoxth eighty~thrae d2gxees, thirty-five asinutes, thirty-nine
seconds East _(~ g3° 35' 39" E) a. distance oL three hundrg3 sixty- .
four and nineteen hundredths feet (964.19') 2) North seventy-e~.ght
degrees, forty-•thraa m~.nutes, fifty-one seconds East {x ~8° d3' Si"
E) a distance of thirty-one and loi:tY hundredths feat {3>..aa') to
• a point; thence by the western right-of way line of Silver Drive
South tYllrteen dagraea, thirty-ttsroe lairiutes, five seconds East ~5
i3° 33' OS" 8) a $3.starice of six huriared seventy and ninety-szx
hundredths Seet (670.96') to a point; thence by Lot No. 7 the
.following eight (8) oouYSeS 1) Due west {x so' Oo" oo" w) a distance
dr one hundred ninety-nine az'Id eighteen hundredths feBt.(=99.xa'y
2) Due North (N oo° 00' DO+' S) a dista~e West' (w ~B-Lfi~~"~)
•. seventy-nine hundredths feet {77.79') 3)'
a'di.stance of one hundred seventy-five and sixty-seven hundredths
hest (678.67') 4) Due south (a oa° oa° oo« E) a distance o! sever~ty-
seven and seventy-rsine hundredths feat (77.79') 5j Dus west (N 90°
oo+ oa' W) a distance of ~ Northd(x oo~oonto0"ate) a dis~atties
hundredths feet {220.62') b)
of forty-six and sixteen hundredths feet {d6.16') 7) SoutY- eghty-
rive degxess, thirty minutes, thirty seconds West (8 a5° 30' ,Y0"' wj
a distance of six hundred six and eighty-one hundredths feet
(606.61')- sj South four degrees, twenty-nine minutes, thirty.
seconds East (8 04' Z9' 39" E) a ctistanee o! Yive huz4dred eighty-two
and sixty-seven hundredths feet {582.67') to a point on the line of
degrees, thirty lninutestthizty seconds West (SS85~3oig30y•R)va
distance of two hundred thirty-four and twenty-seven hundredths
Peet {234.2?') to a point; thence by Lot No. 3 South eighty-•iiye
degrees, eighteen minutes, forty-Five seconds West {s 85° 1E' i5"
~9} a distance of tNo hundred forty-seven and seven hundredths feet '
(247.47") to a point on the eastern right-or-way ling of S.7R. oiid,
the place of Beginaiag. Said ..tract contains 1,46s,6Z7.S4 square
Suet er 33.74.acres.
• Tots
Being lot No. Z on a Final Limited Resubdivisio x, of
~1, and ~Z tbx silvex 6prsn4 cariaons as reacrded - in'
'the Recorder of deed of and far Cumberland Court ys}pxa~
Plan Book 5 Volume r, Pays ?
iAt,~. SR- ~.
EXHLBIT "A" .o ~°.3151-~
'` APR-28-1999 1050
,.
MO.4s4N I.EWIS P!-iI~~1DELPHIA
SClttiDtlL~ A trO1CT'~r18D
I,L-CYAL pESCR~'iION
215 963 5299 P.09~12
O1ZVE GARDEN .
• LOT ~3, STL'+~Et SP'F1Ntt COD~3ONS
SII.VER SPRINGY TOWrtSffi1', C'UMBERY.AND CaONI'Y
• p?~*iSYLVANlA
P~G1NN1rTC~ at a point, said point being the intersection of the Nartltern
. line of the Carlisle 3?i~ (S It.0011) with the Eastern line of S.R.Ol1f; thence in
a Northerly direction along the ~istem lire of S.R.Oil4, by a ctav4, curving to
the left, ItavL1$ a radius of ?28.51 feet and an arc length of I80Sb feet m a
point, said point being the intersection of the Southern line of a 30' Riht-of-~Iay
and the Eastern line of S.R. 0114; thence alort8 the Southern line of the SO'
P3ght-of-flay the faltowin; two (Z) courses and distances:
" I. North 85 degt'ezs 1$ minutes 45 seconds East, a distance oY247.07
• feet to a point,
2. North SS degrees 30 utittutes 30 seconds Fast, a distance of 228,78
tent to a polar, '
x`Ittmsue along the Western line of I.ot #5, South 04 degrees 29 minutes 30
seconds P,ayt, a distance of 180.00 feet to a point on tl)e Northern }ine oP the
Carlisle Pike; thence along the Northern line of the Carlisle Pi'cn, South 85
degrees 30 minutes 30 seconds West, a d'utaace of 455.$0 fact to a polar, said
point being the place of begituuig.
• CO14`£AII~TING 83,424.3737 square feet 4R 1.911 Acres. ,
~>:sis ~~~,,.
RPR-29-1999 10 50
,.
hk~42Cx~N LEbIIS Pr1ILRD~~t NIR .
scssattr~ a cota'sttro~
215 903.5299 P. 03/12
. • z.~cAZ, pFSCIt~zOrr '
' .. , .' •
.'TACO SELL t 80T'N N01t/
• L02 t#3 OF SILY~ER SPRItiO COMMONS
STLYFR SPRING 1'01PNSAtP, CUbIDERLAND CO,iJNrY .
' PENNS'YLYAIVlA
AL'L' TEAT CERTAIN isxet or parcel of land situate on ehe Northeast Corner of Route , .
114 (S,R.Ol14) and the Carlisle Ps~;e'(S,ZZ.001I), in the ~'ownstup of Silva Spring, County of
Cumberland, Commonwealth of Penasyivactia, more parti:uiariy baunde8. and described 2s
follows to wit,
BBGIIVNlNCr AT A point oa the Narthem RigPtt-oY Way line o[ the Carlisle Pike, said
pout being 570.x0 fret Fast of the intersection of Rocta 114 and the Carlisle Pike; thence aloa~ .
lands of Lot ~3 of Silver SptistQ Commons, North 04 degrees 29 miahtes 30 secottdSA•est• a
distance of 180.00 feet to a petal, said point being aathe SO-foot wide access easetnea! between
Iat ts5 and Y.ot a¢7 of Silver Spring Commons; !hence along the afasanendaned access easement, .
North SS degrees 90 minutes 30 sewnds Fast, a distance of 284.0b feet to a pout; thence along
a 92.00 foot access easement for the enttutoe to Silver Spring Comtaoas from the Catlisk Pike,
South 04 degrees 29 mtttutt's 3r} seconds Fssl; a distaabe of 366.00 feet to apaict; thence on .
a curve, cutviag to the right, llavicg a radius of 50.00 feet atd an aYCleng~h of :78.54 feat ta'
apbtt-t on theHartMas Right-oF Way linc of the Cuiisl& Pike; tltanee along the Nozthem'itight-
of Way litre of eht; Caslis;e Pike, South 8S degrsees 90 tainutes 30 sewnds West; a diistanee of
id2.22 Feet to a ptrint; (hence along same, IQozth 04 degrees 29 minnutes 30 aeoands SVest, a
distance of 30.00 feet to a point; tilbnoe alotsg scenic, Stwth 85 degrees 3li minutes 30 Seconds
West, a distance of 91.84 feet to a paint, said poine bein; the PLACE OF SBCTIL~IiZ+TG.
B~7G KNOWid AS Let ~`5 ai shown or. the Pinar Resubdivision Plar, of Lots ~3, tr'4 .
and PS, Silver Spdrtg Camtnans. ~. ~ -
CONTAINSN,G 56,361.31 gquare feat OR 1.296 acres.
• zaxzszr °A"
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• i
RPR-28-1993 iB:$1 MO4uRr! ~EWIS PHIWDELP4IR 215 9e3 5233 P.10~12 i
.. ~ i
• •.` .
.
.. 8C@$9~SE A COtiTIRQRD
zlrG~w nascazprsox
' OOT PARCEL ~6 •
BEGINNING at a point oit the Korthern right-o~-vay ls•aa of D.S.
Route 17. and the Western line of land t-ow or late of Richard L.
Radabaugil; thence along the Northern right-o#-way 13ne o! U.S..
- Route 11 by a torus, curving to the left, having a radius or
5,779.65 Peat and an are length oP 146.79 feet 'Co the line o£ land
01 Lot 3'~7; thence along Sar ~9 by~a curve, curving t0 the right,
having a radius a£-50.e0 feet aAd an arc length aE 79..63 feat to a
point; thence continuing alang,same~ North 04 degrees 29 rrihutas 30
seconds Westr.• a distance •o! isa.9~ last tv n pois-tf tbenca
continuing a~.ong samet North 85 degrees 30 alinutes 30 seconds East,
a diatar.Qe of 165,31.#eat to a•point;'thence continuing along same
South 4z degrees 22' minutes la seconds Sast, a distance of tia.lo
test to the Northwest corner or lands now or .late of Richard L.
RaBabaugh; thetace along lands of RaBabaugh, South o0 degrees 59
minutes 04 seconds West, a diatanc8 oP 157.69 Peet to a paint, said
point being the place oP SEGA~3TG. '
CONTAixTNG 41;797.53 Square Feet or 0.959 Acres •
sxxisY: ~~~•, soe~ :~.~~ ~a.~ 655
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__
INTRODUCTION
We, the members of the Eleventh Statewide Investigating Grand Jury, having
received evidence pertaining to allegations regarding violations of the Crimes Code and
of the Controlled Substance, Drug, Device and Cosmetic Act, occurring in and around
Cumberland and Dauphin Counties, Pennsylvania, pursuant to Notice of Submission of
Investigation No. 17, do hereby make the following findings of fact and recommendation
of charges:
FINDINGS OF FACT
This Grand Jury heard evidence concerning an investigation being conducted by
the Oftce of Attorney General, Bureau of Narcotics Investigation and Drug Control into
marijuana trafficking in Cumberland and Dauphin Counties centered around a George
Dare.
Agent Ronald Diller of the Office of Attorney General, Bureau of Narcotics
Investigation and Drug Control, testified that on September 18, 1996, he debriefed a
cooperating individual (hereinafter °CI") concerning the marijuana distribution of Paul
Bradl. Agent Diller provided the name of the CI to the Eleventh Statewide Investigating
Grand Jury and indicated that the CI would be available. for testimony at trial if
necessary. The CI has purchased marijuana from Bradl sporadically for fifteen years.
The Cl stated that Bradl runs a parking lot located at 218 North Second Street in
Harrisburg, Dauphin County, Pennsylvania, and that Bradl's office is located directly
across from the parking lot at 217 North Second Street.
Agent Diller testified that he utilized the Cf to make numerous controlled
purchases of marijuana from Paul Bradt at both the parking lot located at 218 North
Second Street and Bradl's office located at 217 North Second Street, Harrisburg,
Dauphin County, Pennsylvania. In each instance, the CI was searched prior to the
transaction, provided with official funds in order to make the transaction, and observed
by surveillance traveling to the location at 217 North Second Street or 218 North
Second Street. After each transaction, the CI gave the quantity of suspected marijuana
to Agent Diller. Agent Diller debriefed the CI about the transaction itself.
On March 13, 1997, Paul Bradt testified before the ,Grand Jury pursuant to a
order of immunity entered by G. Thomas Gates, Supervising Judge of the Eleventh
Statewide Investigating Grand Jury. Bradt testified concerning a search warrant which
had been executed on his office on January 31, 1997, and said that the ponce seized
seven pounds of marijuana which he had received from George Dare the previous day,
January 30, 1997. Dare had met Bradt at the McDonald's Restaurant on North Front
Street in Harrisburg and fronted the marijuana to him: Bradt was then to pay Dare from
the money he received by selling it. Dare told Bradt that Bradt owed him $13;650 for
this marijuana. Bradt testified that he received quantities of marijuana from George
Dare on four previous occasions: May, July, September and November; 1996. Bradt
testified that all of these transactions occurred at the McDonald's Restaurant on North
Front Street in Harrisburg and that the weight ranged from three pounds to seven
pounds. Bradt testified that Dare fronted the marijuana to him each time. Bradt would
meet Dare from time to time at McDonaid's or at the Tavern on the Hill Restaurant in
-2-
Enola, Cumberland County, Pennsylvania, where he would make payments to Dare for
the marijuana previously received,
Paul Bradt testified concerning his marijuana involvement with a John Veljasic.
Bradt testified that he obtained quarter pound quantities of marijuana from John Veljasic
up until Veljasic's arrest on unrelated charges in Dauphin County in April, 1996. After
Veljasic's arrest on these unrelated charges Veljasic was placed in the Dauphin County
Prison. Bradt testified that Veljasic called Bradt while Veljasic was in the Dauphin
County Prison and asked Bradt to retrieve a quantity of marijuana from Veljasic's
residence in Harrisburg, Dauphin County, Pennsylvania. Bradt testified -that he
subsequently traveled to Veljasic's residence, entered the residence with the key he
had and removed the marijuana which was located in a navy blue Rubbermaid storage
container. Bradt testified that the storage container contained multiple pounds of
marijuana. Bradt removed this from Veljasic's residence, and after Veljasic's release on
bail from Dauphin County Prison, Bradt provided this quantity of marijuana to Veljasic.
Agent Diller testified that on February 18, 1997, he provided $3,000 to Paul Bradt
for delivery to George Dare which represented partial payment for the marijuana
received on January 30, 1997. Bradt met Dare at the Wendy's Restaurant on North
Front Street in Harrisburg. Surveillance subsequently followed both of them to the store
of Port Dare, the son of George Dare, located at a shopping center in Silver Springs
Township, Cumberland County, Pennsylvania. Surveillance then followed Bradt and
George Dare back to Harrisburg. Brad! subsequently gave 6'/z pounds of marijuana to
Agent Diller. He said that he received this marijuana from George Dare and Port Dare
-3-
I
~ ~ I
while in Port Dare's store. Bradt also gave Agent Diller a slip of paper which had the
figure $18,460 in Dare's handwriting. Bradt advised Agent Diller that this was the
current balance Bradt owed to Dare. Agent Diller subsequently field tested, the
suspected marijuana which tested positive for the presence of marijuana.
Agent Diller testified that on April 24, 1997, he executed a sealed search warrant
on the residence of George Dare at 4290 Wimbledon Drive, Harrisburg, Dauphin
County, Pennsylvania. Agent Diller seized approximately eighteAn pounds of marijuana
and approximately $52,000. Agent Diller obtained a statement from George Dare
concerning Dare's marijuana, distribution. Dare advised that there was approximately
18 pounds of marijuana in the basement of the residence. Dare also said that there
was approximately $53,000 located in a briefcase upstairs in a closet. Dare stated that
just prior to Easter he received approximately 75 pounds of marijuana from Jeremy
Green at a motel located in Valley Forge, Pennsylvania.. Dare said that Port Dare
accompanied him on this trip. Dare advised that he paid Jeremy $71,250 for this 75
pounds. of marijuana. Dare stated he brought this marijuana to his Wimbledon Drive
address. Dare advised that of the 75 pounds of marijuana received from. Jeremy, 18
pounds were of a lesser quality then the remaining 57 pounds. Dare to{d Di11er that he
supplied Kim Millar with 20 pounds of this marijuana and Raymond Miller with 37
pounds of this marijuana. Dare also told Agent Diller that he had received 60 pounds of
marijuana from Jeremy Green around the first of the year (1997) and that Green
brought this marijuana to Dare's residence.
-4-
On May 15, 1997, George Dare testified before the Grand Jury pursuant toy an
Order of Immunity entered by G. Thomas Gates, Supervising Judge of the ~{eventh
Statewide Investigating Grand Jury. George Dare testified concerning the execution of
a search warrant at a residence he shared with his son, Port Dare, at 4290 Wimbledon
Drive, Harrisburg, Pennsylvania, on April 24, 1997. Dare testified that approximately 18
pounds of marijuana and $53,000 in United States Currency were seized from this
residence, and both-the marijuana and money belonged to him. Dare testified that this
18 pounds of marijuana was part of 75 pounds of marijuana which he received from
Jeremy Green on Easter Sunday (March 30, 1997) at the Comfort Inn located near King
of Prussia off of the, Pennsylvania Turnpike. George Dare and his son, Port Dare,
traveled to this Comfort Inn where they met with Jeremy Green who provided them with .
75 pounds of marijuana. Jeremy Green charged George Dare $950 per pound. Dare
paid Green $71,250 for the 75 pounds of marijuana. George Dare testified that 37
pounds of this marijuana was distributed to Raymond Miller who resides in Northern
Dauphin County. Miller received this 37 pounds of marijuana the Monday or Tuesday
after Easter Sunday at Dare's residence. Dare testified that Miller gave him $20,000
towards this 37 pounds of marijuana. Dare charged Miller $1,500 per pound of
marijuana. George Dare testified that he distributed fifteen pounds to Kim Millar from
Durham, North Carolina. This transaction occurred a week and a half to two weeks
after Easter Sunday at Exit 126 of Interstate 95 in Fredericksburg, Virginia. Dare
testified that Millar paid him $10,000 to $15,000 towards this marijuana. Dare charged
Millar $1,600.00 per pound. George Dare testified that he .provided 5 pounds of
-5-
marijuana to Dan Deichmiller who resides in Perry County. This transaction occurred~at
Dare's residence approximately one week after Easter Sunday. Dare ,charged
Deichmiller $1,600 per pound of marijuana.
George Dare testified that in January of 1997 he received fifty-eight pounds of
marijuana from Jeremy Green at George Dare's residence on Wimbledon Drive in
Harrisburg. Green charged Dare $900 to $950 per pound and Dare paid cash for all 58
pounds of marijuana.
George Dare testified concerning the distribution of this 58 pounds of marijuana
received in January, 1997. Dare sent 15 pounds to Kim Mi11ar in Durham, North
Carolina by UPS courier service. Dare gave 13 or 14 pounds of marijuana to Raymond
Miller behind Port Dare's Pet Shop in Silver Springs Township, Cumberland County.
Approximately 12 pounds of this marijuana was delivered by Port Dare to Richard-Bair.
Daniel Deichmiller received 4 pounds of this marijuana.
George Dare testified that in September or October of 1996 Jeremy Green
delivered 22 pounds of marijuana to him. Jeremy Green took the train to Harrisburg
and George Dare picked him up at the train station and transported him to Dare's
residence, where the transaction took place: Jeremy Green charged George Dare
$850 per pound for this 22 pounds. George Dare testified that this entire 22 pounds
was distributed to Raymond Miller at George Dare's residence on Wimbledon Drive in
Harrisburg.
George Dare testified that he had a separate source of marijuana in Tucson,
Arizona, arranged through his son, Mark Dare. George Dare testified that in the
-6-
beginning of 1995 he began obtaining quantities of marijuana in Arizona. Dare testified
on six separate occasions he received quantities of marijuana from Arizona„ the first
transaction was 60 pounds and the other 5 transactions were 100 pounds each.
George Dare would fly to Arizona, obtain the marijuana in Tucson, Arizona, rent a
vehicle and then transport the marijuana back to Pennsylvania by the rental vehicle.
Dare was charged $850 per pound of marijuana received. Dare testified that the last
shipment of marijuana which reached Pennsylvania occurred in October of 1996. Port
Dare transported the marijuana back to Pennsylvania on one of the trips.
George Dare testified he initially distributed these shipments of marijuana
received from Tucson, Arizona, to four separate customers: Daniel Deichmiller,
Raymond Miller, Kim Millar. and John Veljasic. George Dare testified that following
each shipment of marijuana transported from Arizona to Pennsylvania, all four of these
individuals would receive at least 10 pounds of marijuana. In April, 1996, John Veljasic
was arrested and after Veljasic's arrest Dare started dealing directly with Paul Bradl.
Dare testified that Paul Bradl was Veljasic's customer prior to Veljasic's arrest. George
Dare testified that in the Spring of 1996 he or his son, Port Dare, started dealing -directly
with Rick Bair. Prior to this Rick Bair was a customer of Daniel Deichmilier. Dare
testified that he paid Deichmiller $10,000 in order to deal directly with Rick Bair. Dare
testified that the transactions with Deichmiller and Raymond Miller all occurred within
Dauphin County. Dare testified that the transactions with Kim Millar would occur either
in Durham, North Carolina, or Millar would meet Dare half way between North Carolina
and Pennsylvania.
-7-
Agent Jeffrey Mohn testified concerning a statement he took from Port Oare on
April 24, 1997, the date of the execution of search warrants on the residence o€ George
and Port Dare and the business of Port Dare. Agent Mohn testified that Port Dare was
advised of his i anda rights prior fo making a statement, waived these rights and
spoke with Agent, Mohn and Agent Guy Petrillo of the Intem.al Revenue Service. Port
Dare advised Agent Mohn that the second time his father, George Dare, obtained
marijuana from Jeremy Green, this transaction occurred at a Comfort Inn on Route 202
near the King of Prussia Mall. Port Dare stated that he and his father traveled to this
location where they met with Jeremy Green at which time Jeremy Green provided them
with- 60 pounds of marijuana. Jeremy Green charged George Dare $900 per pound
and George Dare paid cash for all 60 pounds of marijuana. Port Oare advised Agent
Mohn that the 60 pounds of marijuana was transported to their residence at 4290
Wimbledon Drive in Harrisburg. Port Dare advised Agent Mohn that he himself
provided marijuana, which he received from his father, to Rick Bair, who lived in
4
Lebanon. Port Dare stated that of the first shipment of marijuana that his father
received from Jeremy Green, Port Dare gave 10 pounds of this marijuana to Rick Bair
and that at the time of this delivery Rick Bair owed $15,000. Port Dare advised that
Rick Bair payed $13,000 approximately a month ago and still owed him $12,000. Port
Dare stated that he provided quantities of marijuana to Rick Bair prior to January of
1997.
Agent Diller testified concerning the execution of a search warrarit on April 24,
1997, at the residence of Raymond Miller in. Millersburg, Dauphin County,
-8-
Pennsylvania, Agent Diller testified that the residence had been "sanitized" grid
speculated that somebody had contacted Raymond Miller prior to the execution of the
search warrant. Agent Diller found empty gallon size bags containing marijuana
residue in a trash container outside of the residence. Agent Diller also located an item
in Raymond Mil-er's wallet which contained a phone number for George Dare and the
figures 37 by 2200, which Agent Diller testified was consistent with the amount of
marijuana which George Dare provided to Raymond Miller several days after Easter
Sunday (March 30, 1997).
Agent Diller testified concerning the subsequent cooperation of George Dare and
Port Dare in this investigation. Specifically, on April 24, 1997, George Dare agreed to
have conversations recorded with other targets of this investigation following his
interview by a Deputy Attorney General: Agent Diller-then utilized George Dare and
made a recorded telephone call to Jeremy Green. During this recorded conversation
Jeremy Green advised that he was putting things together and that he-would know
something by Saturday, April 26, 1997 (referring to a subsequent shipment of
marijuana). George Dare told Jeremy Green that he didn't have to worry about the 18
pounds, that Dare got rid of them. Jeremy asked how many Dare wanted and Dare
advised Jeremy that he wanted 75 of them (referring to 75 pounds of marijuana). Agent
Diller testified that on April 29, 1997, George Dare advised him that he had contact with
Jeremy Green on April 26 and 27, 1997. Green advised George Dare that he would be
ready to obtain 75 pounds of marijuana real soon and that the price would be $1,025
per pound. On April 30, 1997, Agent Diller utilized George Dare and made a recorded
-9-
telephone call to Jeremy Green. During this conversation Green told Dare he didn't
think that anything would happen now or in the future, because Green didn't want to be
apart of it any longer.
On May 1, 1997, Agent Diller utilized Port Dare in a cooperating capacity and
recorded a conversation between Port Dare and Raymond Miller which occurred in
Harrisburg, Dauphin County, Pennsylvania. Miller advised that the police came to see
him that same night {referring to April 24, 1997) but they didn't find anything.. Miller said
they just got some empty bags and some records. Miller said he can explain the
records away by being thirty-seven acres of property that he was paying $2,200 for.
Port Dare asked Miller about the $25,000 owed to his father. Miller said the money is
hidden and he can't get to it right now but that Danny Deichmilfer had $12,000 of cash
that Miller had given Deichmilfer for the purchase of property and Port Dare should go
to Deichmilfer and collect the $12,000. Miller advised that he would get the remainder
of the money to the Dares by the end of the month. Miller said after Port Dare collects
the $12,000 from Danny the balance would be $13,125. Miller advised Port Dare that
he wasn't "real anxious to do anything right now" (referring to obtaining additional
quantities of marijuana) but he had called his "man" and told him he'd see-him in about
six months or a year.
On May 2, 1997, Agent Diller utilized Port Dare in a cooperating capacity and
directed Port Dare to meet with Richard Bair at a truck stop located off of Interstate 81
at Route 39 in Dauphin County: Port Dare met with Richard Bair at-which time Richard
Bair gave Port Dare $11,000 in United States currency which was money owed towards
-10-
~~~~. ~
Bair's $13,750 drug debt. Bair advised Port Dare that Bair only has one customer,~his
son-in-law, his son-in-law has two customers, and that he'll. have the remainder of the
money within a few weeks. Bair also expressed a desire to have -Dare deliver- an
additional 5 to 10 pounds of marijuana to him.
On May 2, 1997, Agent Diller utilized Port Dare in a cooperating capacity and
sent him to the residence of Dan Deichmiller to attempt to obtain money from
Deichmiller for previous marijuana debts. Port Dare went to Deichmiller's residence,
which is in Perry County, Pennsylvania, at which time Deichmiller said he couldn't get
all of the money right now and that he would meet the Dare's the next morning (May 3,
1997). On May 3, 1997, Agent Diller observed. Dan Deichmiller meet with George and
Port Dare at Deichmiller's residence at which time Deichmiller gave them $7,000 in
United States currency. George Dare and Port Dare told Agent Diller that Deichmiller
would be in touch in the near future with the remaining $5,000... Deichmiller advised
them that. he wasn't. worried about the drug charges and was more concerned about a
financial investigation which would show that he had more property and money than
income:
_1i_
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SHERIFF'S RETURN - REGULAR
CkSE`NO: 2001-04151 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LMRES REAL ESTATE ADVISERS INC
VS
PORT DARE ETC ET AL
ROBERT FINK
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within CONFESSION OF JUDGMENT
the
DEFENDANT at 1125:00 HOURS, on the 9th day of July 2001
at 6520 CARLISLE PIKE
MECHANICSBURG, PA 17055
STORE D-1
MATT RUBLE, EMPLOYEE
was served upon
by handing to
a true and attested copy of CONFESSION OF JUDGMENT together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 5.85
Affidavit .00
Surcharge 10.00
.00
33.85
Sworn and Subscribed to before
me this a~ day of
ozov A.D.
«~_~~~~
Pro notary
So Answers:
~~~
R. Thomas Kline
07/10/2001
JOHNSON DUFFIE STEWART & WEIDN
By:
Deput Sheri f
3 1i SHERIFF'S RETURN - REGULAR
C[TSE "Nb: 2001-04151 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LMRES REAL ESTATE ADVISERS INC
VS
DARE ETC ET AL
ROBERT FINK Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within CONFESSION OF JUDGMENT was served upon
DARE PORT T/A PETLAND the
DEFENDANT at 1125:00 HOURS, on the 9th day of July 2001
at 6520 CARLISLE PIKE STORE D-1
MECHANICSBURG. PA 17055
MATT RUBLE. EMPLOYEE
by handing to
a true and attested copy of CONFESSION OF JUDGMENT together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me thi/s~ day of
ems,, p,. oZo-p ~ A . D .
i
„ s ~ 72a~,e~,1 ~.
~'Piothonotary ~ ~r'~
So Answers:
~~~~~
R. Thomas Kline
07/10/2001
JOHNSON DUFFIE STEWART & WEIDN
gy.
Depu y Sheriff
~~, I
Johnson, Duffie, Stewart & Weidner
By: David J. Lanza
I.D. No. 55782
301 Market Street
P. O. Box 109
Lemoyne, Pennsy{vania 17043-0109
(717) 761-4540
LMRES REAL ESTATE ADVISERS, INC., t/a
EASTERN RETAIL HOLDINGS, L.P.,
Plaintiff
v.
PORT DARE, individually and t/a PETLAND,
Defendants
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-4151 Civil
CIVIL ACTION -LAW
IN EJECTMENT
PRAECIPE TO SATISFY, SETTLE
AND DISCONTINUE
TO THE PROTHONOTARY:
Please mark the above-captioned action satisfied, settled and discontinued.
Respectfully submitted,
JOHNSON, DUFFIE, STEWART & WEIDNER
Dated: ~ ~i3 ~03 By. ¢~'i~(N `-
David J. Lanza
Attorney I.D. No. 55782
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
Attorneys for Plaintiff
:214735
CERTIFICATE OF SERVICE
AND NOW, this 13th day of June, 2003, the undersigned does hereby certify that she did this date
serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in
the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows:
John R. Beinhaur, Esquire
Beinhaur & Curcillo
3964 Lexington Street
Harrisburg, PA 17109-2813
JOHNSON, DUFFIE, STEWART & WEIDNER
By: C ~~mni~,~~~ ~QQ ~.)
Jennifer L. Bixler
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