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HomeMy WebLinkAbout99-03533i J 1 cn N F- u_16J la.. •.?: U CD Y_ 1.11 n? N it ? U7 r,?1 V a??? [??y1 ? ? oE? w HH > ? cl) sw? • i r? 0 Al SIDNEY BECKER, et al., IN THE COURT OF COMMON PLEAS Plaintiffs, CUMBERLAND COUNTY, PENNSYLVANIA Vs. CIVIL ACTION - LAW ERNEST T. KATSAMPES, et al., Defendants. NO. 99-3533 CIVIL TERM 1999 PRAECIPE FOR ENTRY OF JUDGMENT BY DEFAULT TO THE PROTHONOTARY: Pursuant to Pa.R.C.P. 1037(b), please enter judgment by default in favor of Plaintiff and against Defendant, Ernest T. Katsampes, for failure to file an answer to the complaint or otherwise to plead thereto, and assess Plaintiffs damages as follows: Amount claimed in the complaint: $436,476.00 Late charges at 1.5%/month for 18 months from filing of complaint: $117,848.52 TOTAL: $554,324.52 together with Plaintiffs costs and attorney fees as permitted under the parties, lease agreement and as requested in the complaint. It is certified that a written notice of intention to file this praecipe was mailed to the Defendant against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten (10) days prior to the date of the filing of this praecipe. A copy of the notice is attached hereto. GATES & ASSOCIATES, P.C. BY: Date: Lpr e ?ke-r- ( , 2000 Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiff) Judgment is entered against Defendant Ernest T. Katsampes and damages are assessed as requested above. Date: Prothonotary LAW OFFICES OF C .TES & ASSOCIATES, P.C. 1017 MUMMA ROAD, SUITE 100, LEMOYNE. PENNSYLVANIA 17017 SIDNEY BECKER, et al., IN THE COURT OF COMMON PLEAS Plaintiffs, CUMBERLAND COUNTY, PENNSYLVANIA vs' CIVIL ACTION - LAW ERNEST T. KATSAMPES, et al., Defendants. NO. 99-3533 CIVIL TERM 1999 To: Ernest T. Katsampes, Defendant. Date of Notice: November 20, 2000 e`? IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: 717-249-3166 1-800-990-9108 GATES & ASSOCIATES, P.C. BY:cr 4?--- . ark E. H lbrun r, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiff) aFoE mm r 1.5 8 $ E ? ? m E ? E Si •• rV i I f ? H 2 z .. o 41 ? ? a $ fn `n I O J # ? F ° w O U z co ? LL? ? o V f-2 . v U , <7 V o ? fQ E U °7 w.7 r-I L r` 1 G W oy F 'Y l IJ LL Z ? ¢ o T T /? e '^ ?y/ U r =0 o U) No f A O L 0 SIDNEY BECKER, JUDITH BECKER and WILMA BECKER SHAPIRO trading as LESTER ASSOCIATES, a general partnership, Plaintiffs V. ERNEST T. KATSAMPES and GEORGE T. KATSAMPES, both individually and as a partnership trading as T/J's FLAME-BROILER RESTAURANT and also trading as TUCSON'S SOUTHWESTERN GRILL, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-3533 CIVIL 1999 PRAECIPE TO ENTER AN APPEARANCE TO THE PROTHONOTARY: Please enter my appearance in the above captioned matter on behalf of George T. Katsampes, both individually and trading as a partnership, trading as T/J's Flame- Broiler Restaurant and also trading as Tucson's Southwestern Grill, defendants in the above captioned matter. - 12-f c t,[C),5 Date r -- Hubert X. Gilro, Esquire Supreme Co ),A Number 29943 Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 ? L' l REPRNT GATES & ASSOCIATES, P.C. 1013 MUMMA ROAD #100 LEMOYNE, PA 17043 PHONE: (717) 731-9600 REF. NO: SOS993533 ATTORNEY FOR: PLAINTIFF COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA PLAINTIFF: BECKER CASE NO: 993533 DEFENDANT: KATSAMPES,GEORGE T. PROOF OF SERVICE HEARING DATE: - - TIME: DEPT/DIV: 1. AT THE TIME OF SERVICE I WAS AT LEAST 18 YEARS OF AGE AND NOT A PARTY TO THIS ACTION, AND I SERVED COPIES OF THE: NOTICE AND COMPLAINT 2. A. PARTY SERVED: GEORGE T. KATSAMPES B. PERSON SERVED: PARTY IN ITEM 2A C. ADDRESS: 34 CARRAIGE HILL LANE LAGUNA HILLS, CA 92653 3. I SERVED THE PARTY NAMED IN,ITEM 2 A. BY PERSONALLY DELIVERING THE COPIES (1) ON: 11-09-00 (2) AT: 0640 HRS 4. THE "NOTICE TO THE PERSON SERVED" (ON THE SUMMONS) WAS COMPLETED AS FOLLOWS: 5. PERSON SERVING: A. FEE FOR SERVICE: $40.25 K.L. COLTON, #5976 SOUTH DIVISION 23141 MOULTON PARKWAY, SUITE 120 LAGUNA HILLS, CA 92653 (949) 472-6942 7. I AM A CALIFORNIA SHERIFF AND I CERTIFY THAT THE FOREGOING IS TRUE AND CORRECT. DATE: 11-09-00 MICHAEL S. CARONA, SHERIFF-CORONER - ------------------- JUD. COUN. FORM, RULE 982(A)(23) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT r No. 5BW State of County of On /--/ -L- DATE before me, //V l F personally N TITLEOFOFRCER.E.G,•JAN appeared EDOE,NOTAq PUBLIC i / kpersonallY known to me - OR - M proved to meEonFtheEbaap, sis o??t evidence to be the person(s) whose name(s) se subscribed to the within • trument and knowledged to mkt e/ ac- e/they executed the same in hi fher/their thorized capacity(ies), and that b i /her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the r? person(s) acted, executed the instrument. ,r LINDA L HULSHOF WITNESS m hand Comm. 11149708 d official seal. N NOTARY PUBLIC CALIFORNIA Onepe County M? Comm, Ex 11 Ir1?1 ?Au??.19,1 s Sos SIGNATUgE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ? INDIVIDUAL ? CORPORATE OFFICER nnEls) ? PARTNER(S) ? LIMITED ? ATTORNEY-IN-FACT ? GENERAL ? TRUSTEE(S) ? GUARDIAN/CONSERVATOR ? OTHFA- DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENmy(IES) _ BHERIFFrnNGrnn DATE OF DOCUMENT SIGNER(S) OTHER THAN ?NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION-5236 Remmet Ave., P.O. BOX 7184 -Canoga Park, CA 91309.7184 E t [r trn r , d f'; r ti,C? C•7 Q u s.. ? a ??c fir; '.D rnn f alL U., U U o° 0 N O U W O J° 5 stfl i STATE OF CALIFORNIA, County of Orange SS. ' 1, GARY L. GRANVILLE, County Clerk-Recorder in and for said County, having by law a seal, do hereby certify that LINDA L. HULSHOF whose name is subscribed to the attached certificate of acknowledgment, proof of affidavit, was at the time of taking such acknowledgment, proof or affidavit, a Notary Public IN AND FOR ORANGE COUNTY, duly commissioned and sworn and residing in said County, and was, as such, an officer of said State, duly authorized by the laws thereof to take and certify the same, as well as to take and certify the proof and acknowledgment of deeds and other instruments in writing to be recorded in said State, and that full faith and credit are and ought to be given to his official acts; that the impression of his official seal is not required by law to be filed in the office of the County Clerk-Recorder. I further certify that 1 am well acquainted with his hand writing and verily believe that the signature to the attached certificate is his genuine signature, and further that the annexed instrument is executed and acknowledged according to the laws of the State of California. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said County Clerk-Recorder this 27TH NOVEMBER day of 00 20 ti F0182.97 (R12/96) GARY L. GRANVILLE County CVk, ecorder in and for the County of Orange By ' CONNIE Deputy QUIROZ t j .I SIDNEY BECKER, JUDITH BECKER and WILMA BECKER SHAPIRO trading as LESTER ASSOCIATES, a general partnership, Plaintiffs V. ERNEST T. KATSAMPES and GEORGE T. KATSAMPES, both Individually and as a partnership trading as T/J's FLAME-BROILER RESTAURANT and also trading as TUCSON'S SOUTHWESTERN GRILL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-3533 CIVIL 1999 NOTICE TO PLEAD To: SIDNEY BECKER, JUDITH BECKER and WILMA BECKER SHAPIRO trading as LESTER ASSOCIATES, a general partnership: You are hereby notified to file a written response to the enclosed New Matter and counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. 121 15' 00 Date r C0 `.,ti Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 (Attorney for the Defendants George T. Katsampes, individually and trading as a partnership, trading as T/J's Flame- Broiler Restaurant and also trading as Tucson's Southwestern Grill) SIDNEY BECKER, JUDITH BECKER : IN THE COURT OF COMMON PLEAS OF and WILMA BECKER SHAPIRO: CUMBERLAND COUNTY, PENNSYLVANIA trading as LESTER ASSOCIATES, a general partnership, Plaintiffs CIVIL ACTION - LAW V. NO. 99-3533 CIVIL 1999 ERNEST T. KATSAMPES and GEORGE T. KATSAMPES, both individually and as a partnership trading as T/J's FLAME-BROILER RESTAURANT and also trading as TUCSON'S SOUTHWESTERN GRILL, Defendants DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM George T. Katsampes both individually and trading as a partnership trading as T/J's Flame-broiler Restaurant and Tucson's Southwestern Grill ("Defendants"), by and through their attorney, Broujos & Gilroy, P.C. respectfully represent: ADMITTED IN PART, DENIED IN PART. Defendants admit that Sidney Becker is an adult individual, further, upon information and belief, Defendants admit that Lester Associates is a fictitious name registered with the Commonwealth of Pennsylvania, Department of State. After reasonable investigation, Defendants are without information sufficient to form a belief as to truth of the remaining averments. 2 DENIED. After reasonable investigation, Defendants are without information sufficient to form a belief as to truth of the averment. ADMITTED IN PART, DENIED IN PART. After reasonable investigation, Defendants admit that Gateway Square Associates is a fictitious name registered with the Commonwealth of Pennsylvania, Department of State. After reasonable investigation, Defendants are without information sufficient to form a belief as to truth of the averments that Lester Associates does business as Gateway Associates. 4 ADMITTED IN PART, DENIED IN PART. If the "Shopping Center" which Plaintiffs refer to is the Gateway Square Shopping Center, Defendants admit that the same is located in Hampden Township, Cumberland County Pennsylvania., After reasonable investigation, Defendants are without information sufficient to form a belief as to the truth of the remaining averments. 5 DENIED. After reasonable investigation, Defendants are without Information sufficient to form a belief as to the truth of the averments. 6 ADMITTED IN PART, DENIED IN PART. It is admitted that Ernest T. Katsampes and George T. Katsampes are named as defendants in the instant action. It is further admitted that Ernest T. Katsampes and George T. Katsampes are adult individuals, and that George T. Katsampes resides at 34 Carriage Hill Lane, Laguna Hills, Orange County, California 92653. It is denied that Ernest T. Katsampes resides at 565 Lovell Court, Hummelstown, Dauphin County, Pennsylvania 17036, as Ernest T. Katsampes no longer resides in Pennsylvania. In all responses herein, it shall be assumed that Plaintiffs' references to "the Shopping Center" shall mean the Gateway Shopping Center located in Hampden Township, Cumberland County, Pennsylvania. ADMITTED IN PART, DENIED IN PART. Ernest and George Katsampes executed the Lease Agreement in their individual capacities, with the tenant on the Lease Agreement listed as "T/J's Flame-Broiler Restaurant". Other than using the name "T/J's Flame-Broller Restaurant" for purposes of the Lease Agreement, as they had not yet settled on a name for the Restaurant, Ernest and George Katsampes did not trade or due business under the said name. Additionally, no partnership agreement was ever executed by Ernest and George Katsampes, as it was their intent to incorporate the business venture. Whether a partnership existed is a conclusion of law which requires no response. Pursuant to their said intent, in May of 1998 and subsequent to executing the Lease Agreement, Ernest and George Katsampes formed a corporation by the name of Katco Enterprises, Inc., through which Ernest and George Katsampes operated the said business. Ernest and George Katsampes and Katco Enterprises, Inc. traded as Tucson's Southwestern Grill. It is specifically denied that Defendants continue to do business as a partnership and Defendants no longer do business under the names T/J's Flame-Broiler Restaurant or Tucson's Southwestern Grill. 8 ADMITTED. 9 ADMITTED IN PART, DENIED IN PART. It is admitted that Defendants took possession of the Premises on or about December 1, 1997. It is denied that Defendants remain in possession of the Premises. By way of further answer, on or about May 26, 1999, Defendants relinquished possession of the Premises to Plaintiffs, and Plaintiffs denied Defendants any further access to, or possession of, the Premises sometime in late May, 1999 by locking Defendants out of the Premises. 10 The averment implies an obligation by the Defendants to Plaintiffs which is specifically denied for reasons more specifically detailed in Defendants' New Matter, Paragraphs 26 through 60, which are incorporated herein by reference as though textually set forth at length; further, the interpretation of the Lease Agreement, as modified by agreements and behavior of the parties subsequent to its execution, forms the basis of the instant dispute, therefore, the averment states a conclusion of law to which no response is necessary. By way of further answer, the written document speaks for itself, and the avennent is otherwise DENIED. 11 The averment implies an obligation by the Defendants to Plaintiffs which is specifically denied for reasons more specifically detailed in Defendants' New Matter, Paragraphs 26 through 60, which are incorporated herein by reference as though textually set forth at length; further, the interpretation of the Lease Agreement, as modified by agreements and behavior of the parties subsequent to its execution, forms the basis of the instant dispute, therefore, the averment states a conclusion of law to which no response is necessary. By way of further answer, the written document speaks for itself, and the averment is otherwise DENIED. 12 The averment implies an obligation by the Defendants to Plaintiffs which is specifically denied for reasons more specifically detailed in Defendants' New Matter, Paragraphs 26 through 60, which are incorporated herein by reference as though textually set forth at length; further, the interpretation of the Lease Agreement, as modified by agreements and behavior of the parties subsequent to its execution, forms the basis of the instant dispute, therefore, the averment states a conclusion of law to which no response is necessary. By way of further answer, the written document speaks for itself, and the averment is otherwise DENIED. 13 The averment implies an obligation by the Defendants to Plaintiffs which is specifically denied for reasons more specifically detailed in Defendants' New Matter, Paragraphs 26 through 60, which are incorporated herein by reference as though textually set forth at length; further, the interpretation of the Lease Agreement, as modified by agreements and behavior of the parties subsequent to its execution, forms the basis of the instant dispute, therefore, the averment states a conclusion of law to which no response is necessary. By way of further answer, the written document speaks for itself, and the averment is otherwise DENIED. COUNT I: ACTION FOR MONEY DAMAGES 14 Defendants incorporate their responses to Paragraphs 1 through 13 herein as though textually set forth at length. 15 The averment implies an obligation by the Defendants to Plaintiffs which is specifically denied for reasons more specifically detailed in Defendants' New Matter, Paragraphs 26 through 60, which are incorporated herein by reference as though textually set forth at length; further, the interpretation of the Lease Agreement, as modified by agreements and behavior of the parties subsequent to its execution, forms the basis of the instant dispute, therefore, the averment states a conclusion of law to which no response Is necessary. By way of further answer, the written document speaks for itself, and the averment is otherwise DENIED. 16 ADMITTED IN PART, DENIED IN PART. It is admitted that sometime in May, 1999, Defendants had not made payments to Plaintiff in the amounts set forth in Paragraph 16. It Is Denied, however, that "Defendants are currently in breach of the Lease Agreement by reason of the following payments which are more than five days overdue", as Defendants had not made the said payments pursuant to an oral agreement between Plaintiffs and Defendants to forebear making such payments until business improved, which improvement never occurred, further, Defendants no longer owe Plaintiffs the amount set forth in Plaintiffs' Paragraph 16, or any other amount, for reasons more specifically set forth in Defendants' New Matter, Paragraphs 26 through 60, which are incorporated herein by reference as though textually set forth at length. Further, the interpretation of the Lease Agreement, as modified by agreements and behavior of the parties subsequent to its execution, forms the basis of the instant dispute, therefore, the averment states a conclusion of law to which no response is necessary. By way of further answer, the written document speaks for itself, and the averment is otherwise DENIED. 17 The averment implies an obligation by the Defendants to Plaintiffs which is specifically denied for reasons more specifically detailed in Defendants' New Matter, Paragraphs 26 through 60, which are incorporated herein by reference as though textually set forth at length; further, the interpretation of the Lease Agreement, as modified by agreements and behavior of the parties subsequent to its execution, forms the basis of the instant dispute, therefore, the averment states a conclusion of law to which no response is necessary. By way of further answer, the written document speaks for itself, and the averment is otherwise DENIED. 18 The averment assumes a conclusion of law, therefore, no response is necessary. To the extent that a response may be deemed necessary, on or about May 26, 1999, Defendants' exercised their right to early termination of the Lease Agreement pursuant to Additional Provisions Number 2. By way of further answer, the averment is otherwise DENIED. 19 The averment implies an obligation by the Defendants to Plaintiffs which is specifically denied for reasons more specifically detailed in Defendants' New Matter, Paragraphs 26 through 60, which are Incorporated herein by reference as though textually set forth at length; further, the Interpretation of the Lease Agreement, as modified by agreements and behavior of the parties subsequent to its execution, forms the basis of the instant dispute, therefore, the averment states a conclusion of law to which no response is necessary. By way of further answer, the written document speaks for itself, including the early termination provisions, which Defendants believe supercede other lease tens provisions of the Lease Agreement, further, the averment is otherwise DENIED. 20 The averment implies an obligation by the Defendants to Plaintiffs which is specifically denied for reasons more specifically detailed in Defendants' New Matter, Paragraphs 26 through 60, which are incorporated herein by reference as though textually set forth at length; further, the interpretation of the Lease Agreement, as modified by agreements and behavior of the parties subsequent to its execution, forms the basis of the instant dispute, therefore, the averment states a conclusion of law to which no response is necessary. By way of further answer, the written document speaks for itself, and the averment is otherwise DENIED. 21 DENIED. The averment states an obligation by the Defendants to Plaintiffs which is specifically denied for reasons more specifically detailed in Defendants' New Matter, Paragraphs 26 through 60, which are incorporated herein by reference as though textually set forth at length; further, the interpretation of the Lease Agreement, as modified by agreements and behavior of the parties subsequent to its execution, forms the basis of the Instant dispute, therefore, the averment states a conclusion of law to which no response is necessary. To the extent that a response may be deemed necessary the averment is denied, Defendants owe nothing to Plaintiffs because of agreements and course of conduct of the parties, subsequent to execution of, and thereby modifying the written agreement between the parties. The amount sought by Plaintiffs is outrageous and without foundation, in that it is contrary to the early termination provision of the Lease Agreement. WHEREFORE, Defendants ask the Court to enter judgment in Defendants' favor against Plaintiffs, dismissing the Plaintiffs' Complaint with prejudice. COUNT 11: ACTION IN EJECTMENT 22 Defendants incorporate their responses to Paragraphs 1 through 21 herein as though textually set forth at length. 23 The averment implies an obligation by the Defendants to Plaintiffs which is specifically denied for reasons more specifically detailed in Defendants' New Matter, Paragraphs 26 through 60, which are incorporated herein by reference as though textually set forth at length; further, the interpretation of the Lease Agreement, as modified by agreements and behavior of the parties subsequent to its execution, forms the basis of the instant dispute, therefore, the averment states a conclusion of law to which no response is necessary. By way of further answer, the written document speaks for itself, including the early termination provisions, which Defendants believe supercede other lease term provisions of the Lease Agreement, further, the averment is otherwise DENIED. 24 DENIED. On or about May 26, 1999, Defendants relinquished possession of the Premises and Plaintiff, thereafter and sometime in late May, 1999, denied Defendants any further access to, or possession of, the Premises and the contents therein by locking Defendants out of the Premises. 25 DENIED. The averment states a conclusion of law to which no response is necessary. To the extent that a response may be deemed necessary the averment is denied, specifically because Plaintiffs took possession of the Premises in late May, 1999, by Plaintiffs' actions in locking Defendants out of, and otherwise barring Defendants from, possession of the Premises and the contents therein. WHEREFORE, Defendants ask the Court to enterjudgment in Defendants' favor against Plaintiffs, dismissing the Plaintiffs' Complaint with prejudice. DEFENDANTS' NEW MATTER 26 On November 3, 1997, George and Ernest Katsampes entered into a written agreement with Gateway Square Associates for the lease of a 3,600 square foot space ("Premises") in the Gateway Square Shopping Center ("Shopping Center"). 27 Upon information and belief, Sidney Becker was at the time of the execution of the said agreement, and through to the present time he remains, a principal member of Gateway Square Associates. ("Landlord"). 28 Upon Information and belief, the said written agreement' was modified subsequent to Its execution through several oral agreements between the parties, as well as by the course of conduct of the parties during performance of the written agreement, including numerous modifications and waivers. 29 Pursuant to Paragraph 2 of the "Additional Provisions" of the Lease Agreement, Defendants possessed the right to early termination of the Lease Agreement, and if such early termination was exercised, additional rent owed by Defendants was capped at 6 months base rent. 30 On or about May, 1998, Ernest and George Katsampes formed a corporation pursuant to the laws of the Commonwealth of Pennsylvania with the name of Katco Enterprises, Inc. ("Katco") and for the purpose of conducting business on the Premises. 31 Ernest and George Katsampes, by and through Katco, operated a restaurant under the name of Tucson's Southwestern Grill ("Restaurant") on the Premises from about October 12, 1998 through about May 26, 1999. 32 Defendants experienced poor business conditions throughout the aforesaid time period. A copy of the written agreement is attached to Plaintiffs' Complaint. Plaintiffs refer to the written document as the "Lease Agreement". For clarity sake, Defendants will likewise refer to the written document as the "Lease Agreement", although Defendants maintain that the actual agreement between the parties is evidenced by the said written document, but the actual lease agreement between the parties includes the writing as modified by oral waivers and modifications thereto. 33 Upon information and belief, Ernest Katsampes had numerous conversations with Sidney Becker describing the poor business conditions, and the difficulties experienced by Defendants in making rent payments under the Lease Agreement and difficulty in satisfying other financial obligations of the Restaurant. 34 Upon information and belief, sometime late in 1998 or early 1999, Sidney Becker waived provisions of the Lease Agreement and told Ernest Katsampes that the Defendants could forego paying the base rent under the Lease Agreement and only pay the common area maintenance charges ("CAM") "until business Improved", at which such time Defendants could begin making rent payments, again, and eventually catch-up on the arrearage. 35 Business never improved for Defendants. 36 Pursuant to the aforesaid forbearance agreement, Defendants made several CAM payments, as well as in January of 1999 Defendants made a lump sum payment of $1,000 to be applied to Defendants' account with the Landlord. 37 Upon information and belief, in a phone conversation with Sidney Becker sometime early in May, 1999, Ernest Katsampes elected early termination of the Lease Agreement, pursuant to Additional Provision Number 2 of the Lease Agreement. 38 Upon information and belief, during the aforesaid phone conversation, Sidney Becker discussed numerous options with Ernest Katsampes with regard to the disposition of the Restaurant, which included Ernest Katsampes disclosure to Sidney Becker that the Ernest and George Katsampes had contracted a broker to attempt to sell the Restaurant, either in whole as an operating business or Its assets, then satisfying Defendants' obligations with Plaintiffs. 39 Upon information and belief, during the aforesaid phone conversation, Sidney Becker asked Ernest Katsampes to "hang in". 40 Upon information and belief, in a phone conversation with Sidney Becker on or about May 26, 1999, Ernest Katsampes offered to Sidney Becker all of Defendants' leasehold improvements, fixtures, furnishings, inventory and equipment present on the Premises in complete, full and total satisfaction of any and all amounts due Landlord by Defendants arising out of the Lease Agreement and, more generally, out of the business relationship between the Landlord and Defendants. 41 Landlord never refused the aforesaid offer in satisfaction. 42 Defendants purchased said furniture, fixtures and equipment for approximately $140,000, and Defendants' spent approximately $190,000 on said leasehold improvements, the fair market value of which in May, 1999 easily exceeded any and all amounts Defendants owed Plaintiffs. 43 Upon information and belief, sometime shortly after May 26, 1999, Landlord took possession of Defendants' leasehold improvements, fixtures, furnishings, inventory and equipment which were present on the Premises by taking control of the Premises and by excluding Defendants from the Premises by changing the locks on the doors to the Premises, as a matter of fact, Defendants learned that the locks had been changed through Defendants' said business broker who was unable to enter the Premises to show the Restaurant to a prospective purchaser. 44 Upon information and belief, Landlord sold or otherwise dealt with the aforesaid Defendants' fixtures, furnishings, Inventory and equipment, as if it were their own. 45 Upon Information and belief, Landlord had no further contact, either orally or in writing, with Defendants until this action was served upon Defendants late in the year 2000. 46 Upon information and belief, Landlord never provided Defendants with any written notices of alleged default of the Lease Agreement. 47 Upon information and belief, on or about May 1, 2000, Landlord leased the Premises to Outback Steakhouse, as well as an additional area contiguous to and about equal to the size of the Premises. 48 Landlord's actions denied Defendants the opportunity to sell the Restaurant, either in whole or in part. 49 Landlord's aforesaid actions constituted an Implied acceptance of Defendants' offer in settlement of all claims, creating an oral agreement between the parties by which Landlord accepted Defendants' leasehold improvements, furniture, fixtures and equipment in full and complete satisfaction for any and all amounts due Landlord by Defendants as a result of the Lease Agreement ("Release and Satisfaction Agreement"). 50 Plaintiffs' claims are barred by the Release and Satisfaction Agreement. -1, 51 Plaintiffs' claims against Defendants are barred by the doctrine of Accord and Satisfaction. 4YA Upon Information and belief, Landlord's re-letting of the Premises to Outback Steakhouse served to mitigate any and all damages claimed In Plaintiffs' Complaint, 53 Because Plaintiffs experience no damages, Plaintiffs' have no cause of action, and Plaintiffs suit must be dismissed with prejudice. 54 In the alternative, Landlord's failure to respond to Defendants' offer to settle the claims between the parties constitutes a waiver and modification of Landlord's rights upon an alleged default under the Lease Agreement, thereby barring Plaintiffs from recovery in this action. 55 In the alternative, Landlord's failure to timely assert Landlord's asserted rights under the Lease Agreement bars Landlord from attempting to do so now under the doctrine of Laches. 56 Landlord's actions, conversations, representations and assurances made in late 1998 and 1999 led Defendants to believe that Plaintiffs were going to waive provisions of the Lease Agreement and, further, that Plaintiffs accepted Defendants offer in settlement of all claims between the parties. 57 Defendants, to their detriment, relied upon the aforesaid actions, conversations, representations and assurances, as Defendants did not pursue retrieval or sale of Defendants' said fixtures, furnishings, inventory and equipment, nor did Defendants pursue any other rights or remedies available to Defendants. 58 If no Satisfaction Agreement if found by the Court, Plaintiffs' claims against Defendants are barred by the doctrine of Estoppel. 14M If Plaintiffs are awarded any damages in this action, Plaintiffs will be unjustly enriched. 60 Plaintiffs' claims against Defendants are barred by the doctrine of Unjust Enrichment. WHEREFORE, Defendants ask the Court to enter judgment in Defendants' favor against Plaintiffs, dismissing the Plaintiffs' Complaint with prejudice. DEFENDANTS' COUNTERCLAIM COUNT I-BREACH OF CONTRACT 61 Paragraphs 26 through 51, supra, are incorporated herein by reference as though textually set forth at length. 62 Plaintiffs, by bringing this action, have breached the Satisfaction Agreement. 63 Plaintiffs' said breach is material, further, Plaintiffs' actions are malicious, outrageous and without justification. 64 As a result of Plaintiffs' said breach, Defendants have been forced to litigate a suit having no arguable merit, and have been forced to Incur significant expense in doing so. WHEREFORE, Defendants respectfully request that the Court find In favor of Defendants, entering an order dismissing Plaintiffs' suit with prejudice, enter a money judgment in favor of Defendants against Plaintiffs In an amount equal to the costs and attorneys fees which Defendants have incurred in defending Plaintiffs' suit, and award Defendants any other relief which this Court deems just. COUNT 11- CONVERSION (In the Altemate) 65 Paragraphs 26 through 60, supra, are Incorporated herein by reference as though textually set forth at length. 66 Plaintiffs substantially interfered with, in fact, Plaintiffs have exercised complete dominion and control over Defendants' said personal property in the form of Defendants' fixtures, furniture, equipment and inventory. 67 If no Satisfaction Agreement is found, because of Landlord's aforesaid conduct, Plaintiffs' said interference was without privilege and justification; further, Plaintiffs' conduct was outrageous and done with the Intent to deprive Defendants of the said personal property. WHEREFORE, Defendants respectfully request that this Court find in favor of Defendants and enter an order dismissing Plaintiffs' suit against Defendants, with prejudice; enter a judgment in favor of Defendants against Plaintiffs in an amount equal to: a) an amount equal to the fair market value of the said fixtures, furnishings, inventory and equipment at the time of the conversion, b) interest from the date of the conversion, c) an amount equal to the costs and attorneys fees expended by Defendants in litigating this action, and d) any other relief that this Court deems just. o1 c ?J Gv Date Hubert X. Gilrosquire Supreme C0,Vd I.D. Number 29943 Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information. and belief. I understand OW false statements herein are made subject to the penalties of 18 pa.C.S. Section 4904 relating to unsw+om falsl"ion to authorities. 112 Date SIDNEY BECKER, JUDITH BECKER and WILMA BECKER SHAPIRO trading as LESTER ASSOCIATES, a general partnership, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. ERNEST T. KATSAMPES and GEORGE T. KATSAMPES, both Individually and as a partnership trading as T/J's FLAME-BROILER RESTAURANT and also trading as TUCSON'S SOUTHWESTERN GRILL, Defendants NO. 99-3533 CIVIL 1999 CERTIFICATE OF SERVICE I, Hubert X. Gilroy, Esquire, hereby certify that on this date I have served a true and correct copy of the foregoing Defendants' Answer with New Matter and Counterclaim on: Mark E. Halbruner, Esquire Gates & Associates, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (Attorneys for Plaintiffs) by depositing the same in the United States Mail, first-class postage prepaid in Carlisle, PA. 1a ?# a Date Hubert X. Gil y, Esquire - '2 Broujos & Troy, P.C. 4 North anover Street Carlisle, PA 17013 (717) 243-4574 (Attorney for Defendants George T. Katsampes, individually and trading as a partnership, trading as T/J's Flame- Broiler Restaurant and also trading as Tucson's Southwestern Grill) ?- ?:, ? ;: ; __ ?,: ;`;' ,.??-' --? •- , _ ? 1 t.i `-' v CIO r-i {, a a H H U k F ? w C w . U 0 O VJ 8 SIDNEY BECKER, at al., IN THE COURT OF COMMON PLEAS Plaintiffs, CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW 7 ERNEST T. KATSAMPES, et al., Defendants. NO. 99-3533 CIVIL TERM 1999 REPLY TO NEW MATTER AND COUNTERCLAIM OF DEFENDANT GEORGE T. KATSAMPES AND NOW, come Sidney Becker, Judith Becker and Wilma Becker Shapiro (hereinafter "Plaintiffs"), by and through their counsel, Gates & Associates, P.C., and make the following reply to the new matter and counterclaim raised by Defendant George T. Katsampes: 26. Admitted. 27. Admitted. 28. Denied. The averment states a conclusion of law to which no response is necessary. To the extent that a response may be deemed necessary, the averment is specifically denied because the written Lease Agreement was not modified by subsequent oral agreements or the parties, course of conduct. 29. Denied as stated. Paragraph 2 of the "Additional Provisions" of the Lease Agreement is a writing which speaks for itself. By way of further answer, Defendants never exercised their rights under said Paragraph 2. 30. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the matter averred, and proof thereof is demanded if relevant. 31. Admitted in part, and denied in part. It is admitted that Defendants Ernest and George Katsampes operated a restaurant under the name of Tucson's Southwestern Grill on Plaintiffs' premises from about October 12, 1996, through about May 26, 1999, although the precise termination date of Defendants' restaurant operations is unknown to Plaintiffs. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to whether Defendants operated their restaurant by and through Katco Enterprises, Inc., and proof thereof is demanded if relevant. 32. Denied as stated. The averment does not specify the alleged "poor business conditions" so as to enable Plaintiffs to respond. 33. Denied. Plaintiff Sidney Becker recalls only two telephone conversations with Defendant Ernest Katsampes regarding the subject matter averred. Mr. Becker suggested a rent allowance for an interim period, but Defendants never responded to said suggestion. Plaintiffs' rights under the Lease Agreement were never modified or waived. 34. Denied. Plaintiff Sidney Becker did not make the waiver or forbearance described in the averment. 35. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the matter averred, and proof thereof is demanded if relevant. 2 36. Denied as stated. There was no such forbearance agreement. Defendants made a few sporadic payments under the Lease Agreement from winter 1998 through spring 1999. By way of further answer, answering Defendant George Katsampes admitted that the amounts stated in 9116 of the Complaint were delinquent. 37. Denied. Neither Defendant ever notified Plaintiffs orally or in writing that they were electing to terminate the Lease Agreement pursuant to Additional Provision No. 2. 38. Denied. Plaintiff Sidney Becker does not recall the discussion with Defendant Ernest Katsampes which is described in the averment. 39. Denied as stated. Plaintiff Sidney Becker may have suggested to Defendant Ernest Katsampes that he be patient for his business to grow with time. 40. Denied. Plaintiff Sidney Becker does not recall the discussion with Defendant Ernest Katsampes which is described in the averment. 41. Denied as stated. Plaintiffs do not recall any such offer having been made, and they cannot refuse an offer that was never made. i 42. After reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the r truth of the matter averred, and proof thereof is demanded if relevant. 3 43. Denied as stated. Plaintiffs acted to protect their interests when they learned that Defendants had abandoned the premises. Plaintiffs tried, without success, to contact Defendants. Plaintiffs received calls from suppliers who claimed a right to repossess property from the premises and who had likewise been unable to reach Defendants. No business broker acting on Defendants' behalf ever contacted Plaintiffs to object that the locks had been changed or to request permission to enter the premises with a prospective purchaser. Neither Defendant ever contacted Plaintiffs to object that the locks had been changed or to request permission to remove property from the premises. 44. Denied as stated. Defendants abandoned the premises and any property remaining therein. See 943, above. Any property not repossessed by Defendants' vendors remained in the premises when the new tenant took possession. 45. Denied. Plaintiffs tried, without success, to contact Defendants after they ceased restaurant operations and abandoned the premises. Plaintiffs filed this action on June 9, 1999, and promptly attempted to serve r.he Complaint on both Defendants. Upon Plaintiffs' request, the Cumberland County Sheriff deputized the Dauphin County Sheriff to make service upon Defendant Ernest Katsampes at his home in Hummelstown. As noted in the return of service, the Dauphin County Sheriff attempted to make service on June 28, 1999, but was told that Defendant Ernest Katsampes had sold his home 20 days earlier and had moved without leaving a 4 forwarding address. On dune 10, 1999, Plaintiffs' counsel attempted to serve the Complaint upon Defendant George Katsampes by certified mail addressed to his last known address. The certified mailing was returned to Plaintiffs' counsel with the notation that it was "unclaimed". Plaintiffs thereafter focused their efforts on re-leasing the premises, and they re-instated the Complaint after the premises had in fact been leased to a new restaurant operator. 46. Denied. As more fully described above, Plaintiffs attempted to reach Defendants prior to the commencement of this action, and Plaintiffs tried to serve Defendants with the Complaint in June 1999. Furthermore, Plaintiffs deny that any notice of default is required under the Lease Agreement in order to trigger Plaintiffs' rights and remedies. 47. Admitted. By way of further answer, the premises originally contained 3,600 square feet, and the premises now includes an additional 3,000 square feet. 48. Denied. Defendants abandoned the premises and could not be reached by Plaintiffs. Neither Defendants nor any business broker acting on their behalf ever contacted Plaintiffs to claim the property left on the premises or object to the manner in which Plaintiffs were handling the property. 49. Denied. The averment states a conclusion of law to which no response is necessary. To the extent that a response may be deemed necessary, the averment is specifically denied because there was no such "Release and Saf.isfaction Agreement", either oral or 5 written. 50. Denied. The averment states a conclusion of law to which no response is necessary. To the extent that a response may be deemed necessary, the averment is specifically denied because there was no such "Release and Satisfaction Agreement", either oral or written. 51. Denied. The averment states a conclusion of law to which no response is necessary. To the extent that a response may be deemed necessary, the averment is specifically denied because there was no Accord and Satisfaction between the parties. 52. Denied. The averment states a conclusion of law to which no response is necessary. To the extent that a response may be deemed necessary, Plaintiffs specifically deny that they were obliged under the Lease Agreement or by law to mitigate the damages owed by Defendants. To the extent that mitigation may be required, the Outback Steakhouse lease only partially offsets the damages owed by Defendants. 53. Denied. The averment states a conclusion of law to which no response is necessary. 54. Denied. The averment states a conclusion of law to which no response is necessary. To the extent that a response may be deemed necessary, Plaintiffs specifically deny that they received a settlement offer from Defendants. 55. Denied. The averment states a conclusion of law to which no response is necessary. 6 56. Denied. The averment states a conclusion of law to which no response is necessary. To the extent a response is required, Plaintiffs specifically deny that they made any such actions, conversations, representations or assurances, or that they accepted an offer to settle all claims between the parties. Furthermore, both Article 21 (p. 12) and Article 23 (second full paragraph on p. 14) of the Lease Agreement provide that a waiver or forbearance of Plaintiffs, rights as Landlord on one or more occasions does not affect the ability to subsequently enforce those rights. Said paragraph in Article 23 also provides that: "No covenant, term, or condition of this Lease shall be deemed to have been waived by Landlord unless such waiver be in writing signed by Landlord." A copy of the Lease Agreement is attached to the Complaint as Exhibit "A" and is incorporated therein by reference. 57. Denied. The averment states a conclusion of law to which no response is necessary. To the extent a response is required, after reasonable investigation, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of the matter averred, and proof thereof is demanded if relevant. 58. Denied. The averment states a conclusion of law to which no response is necessary. 59. Denied. The averment states a conclusion of law to which no response is necessary. 60. Denied. The averment states a conclusion of law to which no response is necessary. 7 WHEREFORE, Plaintiffs respectfully request that the Court enter a judgment granting the relief requested in Plaintiffs' Complaint. DEFENDANT'S COUNTERCLAIM COUNT I - BREACH OF CONTRACT 61. Paragraphs 1 through 25 of the Complaint and Paragraphs 26 through 60, above, are incorporated herein by reference. 62. Denied. Plaintiffs specifically deny the existence of such "Satisfaction Agreement" or that they breached such agreement. 63. Denied. The averment states a conclusion of law to which no response is necessary. 64. Denied. The averment states a conclusion of law to which no response is necessary. WHEREFORE, Plaintiffs respectfully request that the Court enter a judgment dismissing the Counterclaim and granting the relief requested in Plaintiffs, Complaint. COUNT II - CONVERSION (IN THE ALTERNATIVE) 65. Paragraphs 1 through 25 of the Complaint and Paragraphs 26 through 64, above, are incorporated herein by reference. 66. Denied as stated. Plaintiffs acted only after they tried, without success, to contact Defendants following their abandonment of the premises. 67. Denied. The averment states a conclusion of law to which no response is necessary. 8 ?i WHEREFORE, Plaintiffs respectfully request that the Court enter a judgment dismissing the Counterclaim and granting the relief requested in Plaintiffs' Complaint. Respectfully submitted, GATES & ASSOCIATES, P.C. BY: Mark E. Halbruner, Esquire Supreme Court I.D. #66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) DATED: l ID l 9 The foregoing Reply is based upon information which has been gathered by my counsel in preparation of the lawsuit. The language of the document is that of my counsel and is not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of my counsel, I have relied upon my counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Dated: d b1 E d LESTER ASSOCIATES, a general partnership BY: Sidney Becker, Ge eral Partner CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates & Associates, P.C., hereby certify that I served a copy of the foregoing document by first-class U.S. mail to the following: Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 9 North Hanover Street Carlisle, PA 17013 (Attorneys for Defendant George T. Katsampes) DATED: Z GATES & ASSOCIATES, P.C. BY: -//-Z. & 162 Mark E. Halbrun r, E wire Supreme Court I.D. #66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17093 (717) 731-9600 (Attorneys for Plaintiffs) c; i i G rn U f-1 41 ro w C , ? W N w 4 g p ! ?ry? ? O O ul 3 9 r q H °? a F Cl) O fA ? M u, ro aoa F B Q J ? ~ Ej vi v? W po T 'A y SIDNEY BECKER, et al., IN THE COURT OF COMMON PLEAS Plaintiffs, CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW ERNEST T. KATSAMPES, at al., Defendants. NO. 99-3533 CIVIL TERM 1999 ORDER AND NOW, this day of _ 2001, upon consideration of Plaintiffs' Motion to Compel Discovery from Defendant George T. Katsampes, it is hereby ordered that Defendant VV-J George T. Katsampes shall serve Plaintiffs with to their Interrogatories and Request for Production of Documents cF swn+ of -++.4 @.a within 'LO daysAor risk further sanctions. BY THE COURT: Distribution: Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (Counsel for Plaintiffs) Hubert X. Gilroy, Esquire 4 North Hanover Street Carlisle, PA 17013 (Counsel for Defendant George T. Katsampes) 05- ?y 01 R 5 'A Y4 a '? a SIDNEY BECKER, et al., IN THE COURT OF COMMON PLEAS Plaintiffs, CUMBERLAND COUNTY, PENNSYLVANIA Vs. CIVIL ACTION - LAW ERNEST T. KATSAMPES, et al., Defendants. NO. 99-3533 CIVIL TERM 1999 PLAINTIFFS' MOTION TO COMPEL DISCOVERY FROM DEFENDANT GEORGE T. KATSAMPES AND NOW, come Sidney Becker, Judith Becker and Wilma Becker Shapiro (hereinafter "Plaintiffs"), by and through their counsel, Gates & Associates, P.C., and make the following motion to compel discovery from Defendant George T. Katsampes: 1. This is an action for breach of a commercial lease agreement between Plaintiffs as landlord and Defendants as tenant. 2. A default judgment was entered against Defendant Ernest T. Katsampes on December 1, 2000. 3. Defendant George T. Katsampes answered the Complaint, and the pleadings are completed. 4. On February 23, 2001, Plaintiffs served Defendant George T. Katsampes's counsel with Interrogatories and a Request for Production of Documents, copies of which are attached hereto as Exhibits "A" and "B", respectively. 5. On April 17, 2001, Plaintiffs' counsel wrote to Defendant George T. Katsampes's counsel to remind him that the time for responding to the discovery requests had expired and to inform him that Plaintiffs would file a motion to compel discovery if no response was made within ten days. A copy of the April 17 letter is attached hereto as Exhibit "C". 6. Answers to Plaintiffs' discovery requests were due within thirty days after service thereof. Pa.R.C.P. 4006(a)(2) and 4009.12(a). 7. More than sixty days after service of Plaintiffs' discovery requests, Defendant George T. Katsampes has not served his answers as required by Court rules, nor has said Defendant requested additional time for doing so. WHEREFORE, Plaintiffs respectfully request that the Court enter an order compelling Defendant George T. Katsampes to serve complete answers to Plaintiffs' Interrogatories and Request for Production of Documents within a time certain or risk further sanctions. Respectfully submitted, GATES & ASSOCIATES, P.C. BY: Zsi ark E. 11albruner, Esquire Supreme Court I.D. #66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) DATE: 2 EXHIBIT "A" SIDNEY BECKER, at al., IN THE COURT OF COMMON PLEAS Plaintiffs, CUMBERLAND COUNTY, PENNSYLVANIA Vs. CIVIL ACTION - LAW ERNEST T. RATSAMPES, et al., Def endants. NO. 99-3533 CIVIL TERM 1999 NOTICE TO: George T. Katsampes, Defendant, C/o Hubert X. Gilroy, Esquire, BROUJOS & GILROY, P.C., attorneys for Defendant. PLEASE TAKE NOTICE that pursuant to Pa.R.C.P. 4006, you are hereby required to serve upon the undersigned your written responses, under oath, to the following interrogatories within thirty (30) days after service upon your counsel. Each interrogatory calls not only for the knowledge of the answering defendant but also for the knowledge that is available to said defendant by reasonable inquiry, including inquiry of his attorneys, representatives, employees and agents. T h e s e interrogatories shall be deemed continuing in nature in accordance with the provisions of Pa.R.C.P. 4007.4. GATES & ASSOCIATES, P.C. /??/ ' if BY: Mark E. H lbrune , Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 Dated: /(?j I (Attorneys for Plaintiffs) C? O p? SIDNEY BECKER, et al., IN THE COURT OF COMMON PLEAS Plaintiffs, CUMBERLAND COUNTY, PENNSYLVANIA Vs. CIVIL ACTION - LAW ERNEST T. KATSAMPES, et al., Defendants. NO. 99-3533 CIVIL TERM 1999 PLAINTIFF'S INTERROGATORIES TO DEFENDANT GEORGE T KATSAMPES The following interrogatories are propounded by Sidney Becker, Judith Becker and Wilma Becker Shapiro (hereinafter -,Plaintiffs"), upon George T. Katsampes (hereinafter "Answering Defendant"), to be answered within thirty (30) days of service hereof: 1. State Answering Defendant's full name, residential addresses for the past five years and the dates he lived at each address, his social security number and his date and place of birth. 2• Set forth the following details regarding Answering Defendant's education: a. Undergraduate school(s) attended, date(s) of attendance, year(s) of graduation, and degree(s) obtained; and b. Post-graduate and Professional school(s) attended, date(s) of attendance and year(s) of graduation. 2 3. Describe Answering Defendants present occupation and his occupations for the past ten years, giving the name and address of each employer. 4• For each communication between the parties to this action, or their respective agents, state: (a) The names and addresses of all persons who participated in or otherwise witnessed the communication; (b) The mode of communication, e.g. face-to-Face meeting, telephone call, writing, electronic mail, etc.; (c) The date of the communication; (d) The subject matter of the communication; and (e) Whether there is a written record of the communication, and if so, the name and address of the current custodian of such record. 4 invent. For any leasehold improvements, fixtures, furnishings, rY and equipment which Defendants purchased for the leased premises at Gateway Square Shopping Center, state the following: (a) The make and model of the item; (b) The cost of purchasing and installing the item; (c) The name and address of any contractor who installed the item; and (d) Whether there is a record of the item's purchase and installation, and if so, the name and address of the current custodian of the record. 5 f 6• Identify any leasehold improvements, fixtures, r remises aents removed from Gat Sare urnishings, inventory and equipment which Defendants or their before the Defe dantstceasedetheir r estaurantp operations there. 6 7. Identify the leasehold improvements, fixtures, furnishings, inventory and equipment of which Plaintiffs took possession, as alleged in 1143 of Answering Defendant's New matter. 8. State the name and address of any business broker(s), including the broker mentioned in 938 and 993 of Answering Defendants New Matter, whom Defendants contacted in connection with their restaurant at Gateway Square Shopping Center. 9. State the name and address of any prospective purchaser(s) of Defendants' restaurant or its asset.s, including the prospective purchaser mentioned in 993 of Answering Defendant's New Matter. 10. If Defendants received an offer from any prospective purchaser identified in the answer to No. 9, above, state the following: (a) The name of the party who made the offer; (b) The terms of the offer; (c) whether there is a record of the offer, and if so, the name and address of the current custodian of the record. 10 11. Did Answering Defendant participate as a partner, shareholder, officer, manager, investor or otherwise in any restaurant businesses other than the restaurant at Gateway Square shopping center? 11 12. If the answer to such restaurant business, the organizational format proprietorship, etc.), th the name shareholders or owners, th the involvement and the duration No. 11, state the (e. g. c na of An 12 above, is yes, then for each name and dates of operation, orporation, partnership, sole ture of Answering Defendant's swering Defendants involvement. and address of all partners, 13. state the name, home address, business address and telephone number for each person Answering Defendant intends to call as an expert witness at the trial of this matter, and for each expert state: a. The subject matter about which the expert is expected to testify; and b. The substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. This interrogatory may be answered by serving a copy of the experts report or by having the expert answer the interrogatory. C. Attach a copy of the curriculum vitae for each expert identified herein. 13 14. If Answering Defendant knows of anyone that has given a statement (as defined by Pa.R.C.P. 4003.4) concerning the subject matter of this action, state: a. The name, address and telephone number of such person; b. When, where, by whom and to whom each statement was made, and whether it was reduced to writing or otherwise recorded; and c. The name, address and telephone number of any person who has custody of any such statement that was reduced to writing or otherwise recorded. 14 15. State the name, address, Occupation person Answering Defendant intends to call as at the trial in this matter, his relationship and the substance of the facts to which expected to testify. 13 n and employer of each a non-expert witness to each such person, each such person is 15 16. Identify all exhibits that Answering Defendant intends to use at the trial or depositions in this matter. 16 17• State the publi ati title, author, publisher con of any books, magazines, treatises writings which Answering Defendant intends to use depositions in this matter. and date of or other such at the trial or 17 18, if Answering Defendant intends to use at the trial or depositions in this matter any admissions made by Plaintiffs or anyone speaking on Plaintiffs, behalf, then identify such admissions and the person(s) to whom they were made and state whether there is any record of such admissions. 18 I i f . 19. State with particularity the factual basis for each defense which Answering Defendant is asserting in this matter. 11 19 YYIW F rs': i.. 20. State the name and address of all persons answering these interrogatories. I 20 VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing answers to interrogatories are true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Dated: CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates & Associates, P.C., hereby certify that I served the foregoing Plaintiffs' Interrogatories to Defendant George T. Katsampes by first-class U.S. mail to the following: Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. x. 4 North Hanover Street Carlisle, PA 17013 (Attorneys for Defendant George T. Katsampes) GATES &/AASSSS((OCIATES, P.C. BY: /!L/fi1C/C, Mark E. Halbruner, Esquire Supreme Court I.D. #66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) DATED : _? j?? EXHIBIT "B" SIDNEY BECKER, at a1., IN THE COURT OF COMMON PLEAS Plaintiffs, CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW ERNEST T. KATSAMPES, at al., Defendants. NO. 99-3533 CIVIL TERM 1999 PLAINTIFFS1 REQUEST FOR PRODUCTION OF DOCUMENTS TO: George T. Katsampes, Defendant, C/o Hubert X. Gilroy, Esquire, BROUJOS & GILROY, P.C., attorneys for Defendant. AND NOW, pursuant to Pa.R.C.P. 4009, come Sidney Becker, Judith Becker and wilma Becker Shapiro (hereinafter "Plaintiffs"), by and through their counsel, Gates & Associates, P.C., and request Defendant George T. Katsampes to produce for inspection, examination and copying at the offices of Gates & Associates, P.C., 1013 Mumma Road, Suite 100, Lemoyne, Pennsylvania 17043, not later than thirty (30) days after service of this request, the following documents: 1. All checks, receipts or other records of payments made by Defendants to Plaintiffs in connection with the premises leased by Defendants at Gateway Square Shopping Center, as more fully described in the Complaint. 2. All correspondence, invoices or other documents which Defendants received from Plaintiffs in connection with the premises leased by Defendants at Gateway Square Shopping Center. 3. Copies of all correspondence which Defendants sent to Plaintiffs in connection with the premises leased by Defendants at Gateway Square Shopping Center. C?Opy 4. All notes or other records documenting any meetings or telephone conversations between the parties to this action. 5. All records documenting that Defendants elected early termination of the parties' Lease Agreement. 6. All records documenting the poor business conditions which Defendants experienced, as alleged in 932 of Defendant George T. Katsampes's New Matter. 7. Federal and state income tax returns for Defendant George T. Katsampes for 1997 through 2000. 8. Corporate income tax returns and financial statements for Katco Enterprises, Inc. for 1998 through 2000. 9. All records that identify, or establish the value of, the leasehold improvements, fixtures, furnishings, inventory and equipment of which Plaintiffs took possession, as alleged in 943 of Defendant George T. Katsampes's New Matter. 10. All records of communications between Defendants and any business broker(s), including the broker mentioned in 938 and 443 of Defendant George T. Katsampes's New matter, whom they contacted in connection with their restaurant at Gateway Square Shopping Center. 11. All records of communications between Plaintiffs and any business broker(s) acting on Defendants' behalf. 12. All records identifying any prospective purchaser(s) of Defendants' restaurant, including the prospective purchaser mentioned in 943 of Defendant George T. Katsampes's New Matter. 2 13. All records documenting the damages claimed by Defendant George T. Katsampes in Counts I and II of his Counterclaim. 19. All records containing the names and addresses of non- expert witnesses whom Defendant George T. Katsampes expects to call at the trial of this matter. 1 15. All reports of any expert witnesses whom Defendant George T. Katsampes expects to call at the trial of this matter. 16. To the extent not already requested herein, all documents in the possession, custody or control of Defendant George T. Katsampes, his attorneys or anyone else acting on his behalf, which he intends to use at the trial or depositions in this matter. 17. To the extent not already requested herein, all documents referred to in Defendant George T. Katsampes's answers to the interrogatories propounded upon him by Plaintiffs. If any document or class of documents is being withheld on the basis of any privilege, identify the document or class of documents, the date(s) of the document(s), the author(s) or originator (s) of the document(s), as well as the privilege which is being asserted. 3 (NOTE: As referred to herein, "documents" includes written, printed, typed, recorded or graphic matter, however produced or reproduced, including correspondence, telegrams, other written communications, data processing storage units, tapes, contracts, agreements, notes, memoranda, analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films, photographs, diagrams, drawings, minutes of meetings or any other writing (including copies of the foregoing, regardless of whether the party to whom this request is addressed is now in the possession, custody or control of the original) now in the possession, custody or control of Defendant or Defendants attorneys, agents, employees, officers, insurers or any other person acting on Defendants behalf. GATES & ASSOCIATES, P.C. BY: C - Mark E. albruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) Dated: 4 VERIFICATION The undersigned hereby verifies that the facts averred in the foregoing document are true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S. 99909 relating to unsworn falsification to authorities. Dated: CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates & Associates, P.C., hereby certify that I served the foregoing Plaintiffs, Request for Production of Documents by first-class U.S. mail to the following: Hubert X. Gilroy, Esquire HROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, PA 17013 (Attorneys for Defendant George T. Katsampes) GA?fTTEE/SJ ?& ASSOCIATES, P.C. BY: A r_ Mark E. Halbruner, Esquire Supreme Court I.D. #66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) DATED : / Z?l /T EXHIBIT "C" LO WELL R. GATES Alw Admlllad to Masuchusana Bb MARK E. HALBAUNER Alm Admiltad Io Naw Jaady Bar CRAIG A. HATCH CORY J. SNOOK ALBERT N. PETERLIN Also Admnlad to Maryland Bar LAW OFFICES OF GATES Sz ASS TI CO A ES P, C. 1013 MUMMA gpgp .SUITE 100 • LEMOYNE, PENNSYLVANIA 17043 (717) 731.9600 • FAX: (717) 731-9627 3 WEST MON MENT SOU IRE. SUITE LEWISTOWN, PA 1TNa (711) 4484M WEB SITE: w .Gat$1LawFimumm April 17, 2001 Hubert X. Gilroy, Esquire )ROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, PA 17013 RE: Becker, et al. vs. Katsampes, et al. No. 99-3533 Dear Mr. Gilroy: On February 23, 2001, I served you with my clients' interrogatories and request for production of documents directed to your client, George T. Katsampes. The time for responding to those discovery requests has now expired. Please let me know if you need additional time in which to respond. Otherwise, I will be forced to file a motion to compel if I do not hear from you within the next ten days. Also, having not heard from you to the contrary, I must conclude that you represent only George Katsampes and not his brother, Ernest. Sincerely, Mark E. Halbruner Enclosures cc: Sidney Becker (Opy .., . CERTIFICATE OF SERVICE I, Mark E. Hal.bruner, of the law firm of Gates & Associates, P.C., hereby certify that I served a copy of the foregoing document by first-class U.S. mail to the following: Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, PA 17013 (Attorneys for Defendant George T. Katsampes) GA`T?EES& ASSOCIATES, P.C. BY: 4' ?l/f ?'11'1( . ?/ Mark E. Halbrun r Esquire Supreme Court I.D. #66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) DATE: _ O1 3 w '- 2 y E . Q Ei ? y+ L?y ? ? ? tl ' O ul I..I E.I ' = 44 O t O I MO 0 HUO u trW/7?U? V] V7 ctl H N7a? b pCj IN i"-. OU O 3 it 1 8 t C-?{ U ? "' ro ? >{ J1 ' J O i bD L i c N H l7 RA P: O S4 N w 00 T- • ? M, %VV l r 1 J. v v im c ? ? .. AIIJV10NOWObd .......... 'O '.• ............. O31V.LSt ? "'i i ...... ... .. ?yINIVId 0 • SIDNEY BECKER, JUDITH BECKER IN THE COURT OF COMMON PLEAS and WILMA BECKER SHAPIRO CUMBERLAND COUNTY, PENNSYLVANIA trading as LESTER ASSOCIATES, a general partnership, CIVIL ACTION - LAW Plaintiffs, Va. ERNEST T. KATSAMPES and N0.923333 CIVIL TERM 1999 GEORGE T. KATSAMPES, both individually and as a partnership trading as T/JIS FLAME-BROILER RESTAURANT and also trading as TUCSON,S SOUTHWESTERN GRILL, Defendants. NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: 717-249-3166 SIDNEY BECRER, JUDITH BECRER and WILMA BECRER SHAPIRO trading as LESTER ASSOCIATES, a general partnership, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. ERNEST T. RATSAMPES and GEORGE T. RATSAMPES, both individually and as a partnership trading as T/J'S FLAME-BROILER RESTAURANT and also trading as TUCSON'S SOUTHWESTERN GRILL, Defendants. NO. r'J 9- 3 533 CIVIL TERM 1999 COMPLAINT FOR BREACH OF LEASE AGREEMENT FOR COMMERCIAL REAL PROPERTY AND NOW, come Sidney Becker, Judith Becker and Wilma Becker Shapiro (hereinafter "Plaintiffs"), by and through their counsel, Gates & Associates, P.C., and make the following complaint: 1. Plaintiffs are adult individuals and the current partners in Lester Associates, a general partnership which is registered as a fictitious name with the Pennsylvania Department of State, Corporation Bureau. 2. Lester Associates has its principal office at 111 Presidential Boulevard, Suite 140, Bala Cynwyd, Montgomery County, Pennsylvania 19004-1086. 3. Lester Associates also does business as Gateway Square Associates, which is registered as a fictitious name with the Pennsylvania Department of State, Corporation Bureau. q v ? 4. By way of a deed dated August 19, 1992, and recorded October 23, 1992, in the Cumberland County Recorder of Deeds Office in Deed Book Y-35, Page 442, Plaintiff took title to a certain commercial real property (hereinafter "the Shopping Center") located in Hampden Township, Cumberland County, Pennsylvania. 5. By a Decree of this Court dated October 7, 1996, Plaintiff fIs title to the Shopping Center was affirmed. 6. Ernest T. Katsampes and George T. Katsampes (hereinafter "Defendants") are adult individuals believed to be residing, respectively, at 585 Lovell Court, Hummelstown, Dauphin County, Pennsylvania 17036, and 34 Carriage Hill Lane, Laguna Hills, orange County, California 92653. 7. Defendants do business as a partnership under the fictitious names TIJIs Flame-Broiler Restaurant and Tucson's Southwestern Grill. 8. By way of a Lease Agreement dated November 3, 1997, Defendants rented a 3,600 square foot unit (hereinafter referred to as "the Premises") in the Shopping Center from Plaintiffs. A copy of the Lease Agreement is attached hereto as Exhibit "A". 9. Defendants took possession of the Premises on or about December 1, 1997, and they have remained in possession of the Premises through the present. 2 10. Under the Lease Agreement, Defendants are obligated to pay Plaintiffs the following items which are due on the first day of every month: a. Rent: $3,750.00 b. Common Area Maintenance Charges: $ 236.00 C. Insurance Charge: $ 21.00 d. Pro Rata Tax Share: $ 155.00 Total: $4.062.00 11. Under the Lease Agreement, Defendants are also obligated to pay the sewer charges for the Premises, which are currently payable in $70.00 quarterly installments. 12. Under the Lease Agreement, Plaintiffs are entitled to collect from Defendants a late charge equal to 1.5% per month of any overdue payments. 13. Under the Lease Agreement, Defendants are obligated to pay all expenses, including but not limited to attorney fees, court costs, filing costs and service costs, which Plaintiffs incur in enforcing compliance with the Lease Agreement. COUNT I: ACTION FOR MONEY DAMAGES 14. The facts averred in Paragraphs 1 through 13, above, are incorporated herein by reference. 15. The Lease Agreement provides that a default for five (5) days or more in the payment of any sum due thereunder shall constitute a breach thereof. 3 16, Defendants are currently in breach of the Lease Agreement by reason of the following payments which are more than five (5) days overdue: a. Rent: $23,626.00 b. Common Area Maintenance Charges: $ 680.00 C. Insurance Charge: $ 105.00 d. Pro Rata Tax Share: $ 775.00 e. Sewer Charge: L__14 0. 0 0 Total: 25,3 6 00 17. The Lease Agreement provides that, upon a breach by Defendants, Plaintiffs may declare the agreement terminated without notice to Defendants and may recover from Defendants (i) all sums currently due under the agreement, (ii) all rents which would subsequently accrue during the remaining term of the agreement and (iii) all expenses incurred by Plaintiffs in maintaining, repairing and reletting the Premises. 18. Plaintiffs hereby exercise their right to terminate the Lease Agreement as aforesaid. 19. The Lease Agreement provides for an initial ten (10) year term ending on March 31, 2008. 20. The monthly rent payment due under the Lease Agreement is set to increase to $4,050.00 beginning on June 1, 2003, and continuing through the remaining term of the agreement. 21. By reason of the aforesaid breach, a total of $411,150.00 in additional rent is due from Defendants to Plaintiffs for the balance of the Lease Agreement from July 1, 1999, through March 31, 2008. 4 WHEREFORE, Plaintiffs respectfully request that the Court enter a judgment in favor of Plaintiffs and against Defendants jointly and severally for $436,476.00 together with costs, attorney fees and such late charges and other expenses recoverable under the Lease Agreement. COUNT II: ACTION IN EJECTMENT 22. The facts averred in Paragraphs 1 through 21, above, are incorporated herein by reference. 23. The Lease Agreement provides that, upon a breach by Defendants, Plaintiffs may declare the agreement terminated without notice to Defendants and may reenter the Premises and take possession thereof without prejudice to such other rights and remedies as Plaintiffs may have under the agreement or applicable law. 24. Defendants remain in possession of the Premises. 25. By reason of Defendants' breach described hereinabove, Plaintiffs hereby exercise their right to possession of the Premises. 5 , WHEREFORE, Plaintiffs respectfully request that the Court enter a judgment in ejectment awarding them immediate possession of the Premises together with costs, attorney fees and such other relief as the Court deems appropriate. Respectfully submitted, GATES & ASSOCIATES, P.C. BY: 4 Mark E. lbru r, Esquire Supreme Court I.D. #66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) DATED: June 7, 1999 6 EXHIBIT "A" JUN-04-99 FRI 11:29 LOWELL R GATES PC FAX NO. 7177319627 -1. 09 VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in preparation of the lawsuit. The language of the document is Lhat of my counsel and is not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of my counsel, I have relied upon my counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. Dated:_ G/ 1999 LESTER ASSOCIATES, a general partnership BY: _/ 644Y & Sidney Becker, General Partner 77. GATEWAY SQUARE. SHOPPING CENTER GATEWAY SQUARE ASSOCIATES LANDLORD AND Lease T/T!S FL.AMF_AR07T FR RFCTAi1RANT. TENANT ii 1111 W 11 File: LEASE AGREEMENT THIS LEASE dated this 3rd day of Nov. , 19j7 between Gateway SOudre Associates having no address at._SUITV IaU I11 PRdr11?;I9TIAl I?1 VI) -IAa A CN'N%V\ U PA 19004 ("Landlord") And tae and having an address is num:neistown, PA 17036 („1euauP)' Certain Fundan?enlal Lease Provisions are presented in this Section wild represent ilia agrecuic at of ilia parties hereto, subject to further, definition and cluburatiou in like respective referred Sections elsewhere in this Leasu; Shopping Center: Luca" in the- Gateway guars" Shuppiug Ceuter ml Mechaniishg PA ' Do?niscd Premises: Containing approxituawly a;hnn square feel with uppruxiurale dimensions of 60 a• x 601 as shown as Store fiA101-JU and outlined in red on Exhibit "A" altrched hereto. Perauilted Ilse: glaG,•?„?:, , under the style and trade name ill' u.r and fur uu other purpose. (See Paragraph Twenty) Lease Start Date Z Rout Commencement Dale ?/aa Lease. Termination Date aal a Minimum Annual 12eotinitialig 499 000.00 (Sec Paragraph Twig) Monthly Rent Payu?ea?Is ini tially a. 750.00• (See Paragraph '1'wu, Initial Common Area Charges ' ?'a6. 00 (Sec Paragraph Niue) Initial Insurance Charge ----24-00 Initial Tax Share Initial Monthly Rem)tlance A. 00 Percentage Item Factor 4 Term -'10 Security Deposit •750n0 Options 2/5 Year (Sec Paragraph Twenty Six) (Sec Paragraph Nineleco) (See Paragraph One) (See Paragraph TiventyFive) See Page 'three References appearing in the Fundamental Lease Provisious are to dcsigaiale sume of Ilia other places in this Lease where additional provisions applicable to Ilia particular Fuudaalenml Lease Provisions appear. Each reference in this Lease to any of ilia Fundamculal Lease Provisions on pages I , 2 and 3 shall be construed to incorporate all of the aenais provided for under such provisions,und such provisions shall he read is canjaiuciiwi wish all uglier provisions of this L%:Uso applicable Iherelu. If Inure is ugly cunl'licl betwceai any of ilia Fundamental Lease Provisions set forth on Pages 1 ; maid 3 and ugly uglier provisions of IUis Lease, the lacer shall control. The listing oil page 1 of monetary charges payable by icaunt shaill not be construed to be til? cxhauslive list of all monetary amouuis payable by Tenant under this Lease. ?2 ramanosiaw o sso-gg5o P,02 Rent For The Demised Premises Is As Follows: Year 1.5 45,000.00 per annum payable at 3,750.00 per month 8.10 48,600.00 per annum payable at 4,050.00 per month Rent For The Demised Premises For The Option Period Is As Follows: Year 11.15 50,400.00 per annum payable at 4,200.00 per month 16.20 52,200.00 per annum payable at 4,350.00 per month Additional Provisions: 1. Tenant has an exclusive on type of Restaurant featuring flame broiled foods. 2. Tenant has the right of early termination with a settlement of 6 months rent. 3. Tenant shall pay his pro-rata share of CAM upon taking possession of the premises. 4: Landlord hereby grants Tenant permission to place temporary signage along the main road and on the exterior of Tenant premises for the first 60 days that Tenant is open for business. Tenant shall be responsible for permits for this signage. 5. If Tenant is not In default the security deposit shall be applied to the 24th month's rant. 6. Tenant shall only be obligated to join a merchants association so long as all other small stores are obligated to join, 7. The cost of recording this Lease,by Landlord shall be borne by Landlord. 8. Tenant shall have the right to sign 2 sides of the building with Landlord's consent not to be unreasonably withheld or delayed, and subject to Township approval. 9. This Lease is contingent upon Tenant securing all licenses and/or permits to Tenant's sole satisfaction. .i Landlord and Tenant having the following notice addresses on the date of this Lease: LANDLORD Copy lo: Phone Number: 610-64-9820' SUITE 140 111 PRESIDENTIAL BLD BALA CYNWYD PA 19004 TENANT Copy lo: Phone Number: T/J's Flame-Broiler Restaurant '' I• 505 Lovell Court Hummeletown, PA 17036 This Lease Agreement consists of paragraphs, a plan of the Shopping Center marked exhibit "A", Store Construction Specifications marked Exhibit "B", Sign Criteria marked Exhibit "C", a set of Tenant Sign Standards marked Exhibit "C-A", all of which are Incorporated herein and by reference made a part hereof as if set forth at length; all of which are attached hereto. IN WITNESS WHEREOF, Ibis Lease has been duly executed by the parties hereto, intending to be legally bound thereby, under seal as of the date and year first written above. GATEWAY SQU E ASSOCIATES /2,-3o-c77 T/ IS FLAME-BROILER RESTAURANT Witnesseth: L,"v?e-T' \La?Saw.?es i il• 4 ??. `i i The landlord does hereby lease and demise lu the Tenant, unit the Tcomil dues hereby accept and lease (ruin the Landlord, upon the terms, covenunts, conditions, and Ilmitutiuns hereinafter set forth, the Demised Premises as set forth on Page One of Ibis Lease Agreement. For the use unit occupancy of said Dendscd Prenthes during the term of this Lease, Tenant shall pay to Lundlurd a guaranteed minimum rental In she amounts spccilled uu Puges One and Two hereof; a proportionate share of the cipcnses of operating the common areas of and •a prupurliunuhc share of the real estate talcs from time to little imposed ugaiusl the Shopping Center„und such other charges as may he required to be paid by Tenant hereunder, all us hereinafter mare particularly set forth. The parties hcretu,intending to be legally bound hereby, further covenant with each other as follows: ONE, COMMENCEMENT DATE, The term shall lcummcacc an the expiraion of Jb days Jlter milice w Tenau slow the Demixd Premises arc ready fur occupancy by Tenanl, or the data when Tenaul commences business upermimix, whichever Is suoner(bercinafler called "Commencement Dote'), unit Use term Shull cxpiri on lite last day of the colendur month In which there shell have elapsed the time set forth on Page One hereof as the Term. If the Commencement Data is not on the first day of a calendar month, rent for the period between Cummencemcul Date and the firms day of the following month shall be appurtluned at the annual rate hcrcinabuvc provided (based fin a JOd day annual basis)and shall be due and payable on the Cu hnc7cmcnl Dale: As soon us Cunuuntccment date has been determined, memoranda In the form appended hereto an??aria Exhibit "C", shall be signed by Landlord hied Tenanl confirming the matters lhcrebt set furl h. '1_WO. PAYMENT OF LEASE. All guaranteed minimum rents, and except as may be hercia olh"isc provided, all percentuge rents, additiunal rents and any other lease charges Jue hereunder shall be payable in equal monthly installments, in advance without set-off or deduction of any kind, upon the first day of each calendar month of the term us lite office of the Lundlord,ur at such other place as she Landlord may (rum lime to lime designate, all without relief from vulumiun and upprulsamcnt laws. The purlics covenant mid agree thal oily payment of rent or additional rent made hereunder may, ut the option of the Lundlurd,bo accepted and applied lit payment all account of the rent or uddhional runt longest overdue under this Lease, nulwihhstand[ug any statement to ilia contrary endorsed fin or uccumpanying each payment. Should any payment or instailnient of such rent or additiunal rent out be nadc fin like duce when It shall have become due and payable, Landlord shall be entitled to cul[cit a lac clarge Ihcrcun equal to one anti unc-hail' percent (1.5%v) per munih,or Ilia highest legal rate permitted by law, or a fraction thercuf of the amount or amounts uverduc,lhe same to be deemed additional rent hereunder. Except us herein otherwise specifically provided, It is the intent of ilia parties Thal the rent, additional rents and other expenses which may become due unit payable by Tenant hereunder shall be •ahsulutcly net of any und qll charges, usxsstncros, Impositions, costs, expenses or deductions of every kind or nature upplicable lu ilia Demised Premises, or the use and occupancy thereof, ilia Tenant to he solely responsible therefor std the Landlord to have absolutely all liability or responsibility whatever in connection therewith. TIIREE, REPAIRS, ORDINANCES, AND VIOLATIONS. I'hc Tcaun, cuvntanls That no waste or damage shall be commiltcd within, upon or to the Demiscd Premises; that she seine shall be used fur unly the purpose Ihereinubnve stated,shafl nut be used fur any unlawful purpose and that no violations of law or ordinance or duly constituted authority shall be committed Ihercun. Throughout she term hereof Tenant mhull take good care of the demised Prcmises,including without Ilmitutluns, the electrical and plumbing systems from their points of entry therein; the heating,venllluling and air conditioning system unit the electrical system servicing Demised Premises unit any and all dours, umldintt, trim, window ironies, door francs, closure devises, duur hardware, duur hinges and/or windows us well as fixtures •and appurtenances and all alterations, . additions and improvements to manic; and Tenant shall make ull vepuirs unit replucemcnis to and about the same, in purl and in their entirety, as may be necessary to preserve them in good order unit condition. All repairs and replacements shall be equal in quality so ilia original work and Tenant shall pruaplly pay the expense of such repairs unit replucemenis, suffer no waste or injury to Demised Premises, give prompt notice to ilia Landlord of any damage ilia[ may uccur,execute and comply with all laws, rules, orders, ordinances and regulutiuus at any time issued or in force, applicable to ilia Demiscd Premises or in ilia Tunant's use and occupancy thereof, of the Landlord and/fir the Municipal,City Cuunly,Slate,Fcderal Cuvernments and of each and every department, bureau and official thereof, and of the Huard of Fire Underwriters having jurisdiction thereof. Landlord will keep in repair the structural elements, cuer[ur, roof and contmun area of the Shopping Center, provided the Tenant shall give Landlord written notice of the necessity fur any such repairs theretu, anti provided further that ilia d'ainuge to the some shall not have been caused by the negligence or cureless ucl of Tenon, in which event Tenant shall be respunsiblu therefor. Landlord's obligation with respect to repairs to the Demiscd Premises shall be only us expressly set forth-in this Paragraph Three, and all costs incurred in connection lherevyjth shall be Includud as part of the expenses incurred by Landlord under and pursuant to the provisions of Paragraph Nine hereof. At the expiration of the term Tenant than peacefully surrender [lie Demised Premises lu the Landlord In good order and repair, and broom clean. 1 FOUR. INCREASED FIRE INSURANCE RATES. Tenant shall not du, suffer to be dune, or keep, or suffer to be kept anything in, upon or about the Demised Premises or lake any action which would void, make voidable, affect the enforceability of or increase ilia premium for any. of Landlord's insurance policies insuring against loss or damage by lire or other hazurds,induding but not united to public liability, or which will prevent Landlord (rum procuring such policies in companies acccpluble to Landlord. If Tcaunl allows the demised premises to remain vacant or unyllning be done, tomilted to be dune or suffered to be dune by Tenet, or kept or suffered by Tenant to be kept in, upmt or about the Demised Premises that shall cause ilia rate of fire or other insurance nainained thereon by the Landlord in companies acceptable to Landlord to he increased beyond the minimum rule from lime to time applicable to the Demised Premises when fully occupied by tenant or to its time fur the purpose permitted under this (case or to the use of such other property of Tenant as muy be kept or maintained therein, Tenant will pay'as an udditiunal rent hcraun icr the amount of such increase promptly upon Landlord's demand. Should any use or vacating of the Demised Premises by Tenant operate in any manner to void or make voidable any much insurance policy ? p 1 •1 'x..11 or otherwise affect III enforceability by Landlord Then Landlord shall have the rlghl(in addition to all ether remedies available In Landiord)III terminate this Lease upon thirty(30) days wriuan nutiec to Tenant. FIVE. ASSIGNMENT OR SUBLETTING. Tenant expressly covenants Ihal it will nut rssigni,Inunguge or nor liccumb`uneusslun?or ulhurwisefsg0 be loved by ill err without lllm prior I wrfu o eunxvl of Landlord lt he eouh whether by In the even Ihv'1'nanl huroundur shall be a corporation, any transfer, sale, Pledge, or other dispusitiun of Ilia aurpuruhi stuck or voting sciurlllea of the Tenant shuit bas daunted an assignment of this Leave said therefure prohibited wltituul Ilia express written consul of Landlord. At all times during the term or Ihis Lease and any?renewul Iherrur, II Is Wally agreed what all putsuna signing on behalf of the Tenant corporation shall be officers and I?Irocwrs of ?ald Taming curpuratiun and Ihuy will culluclively own at luosl 75% or mare of all slocks,cqullics,und securities of said Tenons, If be ned r if Detaile or any port thereof he sublet unr-let or occupied anyone ulherritha nuTnsigawithout she exhpreess wrilnrco sent of Lwtdlurd first had an,, ablained, Landlord may by culled real from ilia assignee, undaricaanl, user or uccupaml and apply Ilia ties amount eullceted to all runt herein rcaurvud, but no such usdgnntnl, wtderlaillng, occupancy or suflectiun shall be deemed a waiver of this covenant or the uccepluucu of ilia asslgnuu, undurtenant, user or occupant us Tunual, or a waiver ur release of the performance by Tnun0h Puri to be heroin observed and performed. hit the event this Landlord's arnica coasting to any uniigmncal or sublailing is gruuteu hereunder, she Tenant shall, nevrihefass, rcuhuih liable to perform all covenants and conditions by the tenons to be observed and/or prfurmad hereunder, and to guarantee such performance by Ilia assigns or sub-lananl, and such consent shall In no event be deemed euminuing fur ilia purpose of tiny subsequent assiguniems and/sir subletting, each of which shall require ilia sepur"lo written consent of Landlord first had and obtained for which Landlord may, at Its option, require Ilse paymval string administrative fee of $250.00 In uach Insluncu. SIX, BANKHtiPTCY OR INSOLVENCY. A. Leave Rejection in ONnkruplcy, In 1119 Visual the Taming shall become a Debtor under Chapter 7 of The Bahlaruptcy Cude, and the'1'rustcc or Tenunl shall clad Its uwume This Lease fur the purpose of assigning The same or otherwise, such election and ussigmmrne may be "'side only If all lurnss and conditions of Paragraph Six hereof ore satisfied. If such Trustac shall full ht elect to assume Ihis Lease within Ilxty (60) days uflar the filing of the Perrun, this Louse shall be deemed la have ben rejected, unless fur cause shown, she Bankruptcy Court shall, priur to expiration of said sissy (60) day's, have cascaded ilia lime for ausumpllun of this Lease. Landlord shall be Ibercupon immediately entitled Its pussassiun of the Dcmbed Prvmiscv without further obligation lu Tenant or she Trustac; and this Lease shall be conceited, but Landlord's right to be compensated fur damages In such liquidation proceeding shall survive. B. Cundisluns fur Abbunnpllun of Lumo. 1. In the event thus u Petition fur reurgunlaulias or adjusuucnl ul' debb is filed couceraing Tenuut under Chapter I I or 13 or list Dankrupscy Code, or a pruccediug is riled under Chapter 7 of ilia Bankruptcy Code said is converted to Chapter 11 or 13, Ilia Trusice or Tenunl, as Debtor and Deblur-lea-Pussc»iun, mast elect to ussumti Inds Lcuse within Italy (60) days train ilia date of liliog al' the Petition under Chapter I I or 13, or the Trustee or Debtor and Dcbtur-la- Process shall be deemed to have rejected ibis Lease, unless fur cause shown, tine Bankruptcy Court shall have prior to the expiration of said dxly(60) days have ealnded the lime for assumption of this Lease. No clucllun by The Truslee or Debtor and Debtor-In-Pusse»iun to assume Ibis Luusa, whether under Chapter 7, 11, or 13, shall be effec'tive unless each or Ihu following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the congest of a bankruptcy pruceading or Tenants have been satisfied, and Landlord has so acknowledged in writing: (a) The Trustee or the Debtor unit Dabgur-InrPussemion has cured, or has provided Landlord adequate assurance (as defined below) shat: (1) Within Inn (10) days from the dale of such assumptun, the Trustee will cure all monetary dufaulls under this Lease; and (0) Whida thirty (30) days from the dalti of sucb.assumption, ilia Trustee will cure all nun- monetary defaults under Ihis Lease. -- -- (b) Thu Trusts or the Debtor and Deblur-ln-Pusscssiun has compensated, or has provided is Landlord adequate ussurancc'(uv defined below) thus within (10) days from ilia date of assumpllun Landlord will be compensated fur any pecuniary loss Incurred by Landlord arising from the default of Taming, the Trustee, at Ilia Debtor and Deblur-In-Possession us recited in Landlord's written statement u( pecullnary loss sent to the Trustee or Debtor and Debsor-In- Pusse?siun. (c) The Trustee or the Debtor and Deblur-la-Pussessfun has provided Landlord with adequate assurance of the future performance of each of Tenant's, the Trustee or Debtor and Debtor-In-Possession's obligations under this Lease, provided however, that: (I) The Trailer or Debtor and Deblur-lea-Pussussiom shall also deposit with ilia Landlord, as security for she limcly payments an amount equal to two (2) mualhs real (us adjusted - charges pursuant to Six B(l)(c)(Iii)beluw) and other monetary charges accruing under this Lease In addition to any previously deposited security under parugraph,Twentylive 6 ; j J hereof; and (if) If nut otherwise required by the -terms of thix Lease, the Trusice or Dehunr and Debtor. 1n-Possession shall alsu pay in advance on life date minimum rent is payable 1/121h of Tenant's annual obligations under Ibis Lease for added charges. (iii) From and after the dale of assumption of this Lease, lite Trustee or Debtor and Dcblur-In-Possession of the minimum rent otherwise payable hereunder,plus the average umouni of the annual . percenfage paid by Tenant date Landlord within file five (5). year period prior to the dale of Tenant's petition under Ilia Bankruptcy Code,'which amount shall be paid in advance in equal monthly lastullmems an the dale minimum rent is ' payable. , (iv) The obligations Imposed upon file'1'rusice or Debtor and Uchun•-In-Yusscssion shall continue with respect to Tenant or any assignee of this Lease alter completion of bankruptcy prucccdings. ' (J) The uuumplion of this Lease will nut: (i) Breach any provision In any other Icase, mortgage, ranmicing agreement or other agrremanl by which Landlord is bound relating to the Shupping Center; Or (it) Disrupt Ilia quanl balance, Iha icaunl mix or life Shupping Ccaler or way olber alumpt by Landlord to provide a specific factual balance (or tactual nix) of retail scores In Shopping Confer which would be most beneficial to all of the tenants in the Shopping Center and would enhance the hmage, repututiun, mad profitability of the Shopping Center. 2. Fear The purposu of this Section Six B, Landlord and Tenant uaknuwlcdge that, la the comlvxl of a bw ahrupley proceeding of Tenant, aT a minimum "adequate assurance" shall mean iliac ilia Truslce or Debtor anti Debtor-In-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor and Debinr-In-Pusse"lun will have sufficient funds to fulfill the obligations of Tenant under this Lease, and to keep the Demised Premises slacked with merchandise and properly staffed with sufficient employees to conduct a fully operational, actively promulad business on The Demised Premises, C. Landlord's Itighf To Terminate. In Ilia event that Tills Lewis assmned by a Trustee appointed fur Tenant or by Tcuanl as Ucbtur and Debtor- in-Possession under Ilia provisions of Section Sis B hereof mad Ihcreafler Tenanl is hijuidwed or files a subsequent Petition fur reurgml2uhun or adjustments of debts pnder Chapter I1 or 13 of rite Duukruptcy Code, darn, and in either ol'such events, Landlord may, of Its option, terminate this Lease wild all rights of Tanana hereunder, by giving Tenon written notice of iO election to so terminate, within thirty (30) days after the occurrence of such events. For Ilia purpose of this Section Six C, Landlord and Tenant acknowledge the, in the cuutexl of law4rupicy proceedings of* Tenant, at •u minimum " adequate assurance of future performance" shall mean that each of Ilia following conditions have been satisfied, and Landlord has so acknuwiedgcd in writing: 1. The.awfgneu bus submitted a current certified financial statement prepared by a Certified Public Accountant which shows a net worth and working copilot in Ilia amuunu determined all be sufficient by Landlord to assure the future performance by such assignee of'1 craws obligations under this Lease; 2. The assignee has submitted in writing evidence, satisfactory to Landlord, of substaanial retailing experience In shopping centers of comparable size to the Shopping Center and in the sale of merchandise and services permitted under ids Lease; and 3. The Landlord bus obtained all consents or waivers !ruin any third party required under any lease, mortgage, finanaiul arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assigmneal. 0. Use ad Occupancy in Bankruptcy. When, purxuant to the Bankruptcy Code, the Trustee or Debtor and Debinr-!n•Pwsession sbrfi be obligated to pay reasonable use and occupancy charged for the use of Demixcd Premises or any portion thereul, such charges shall nm'ba less than the minimurn-rent as defined in this Lease and other nnmetury obligations of Tenant for udded charges. E. State Low. Ncilher Tenant's interest in this Lease, nor way lesser interest of Tenant heroin, Our any Estate of Tenant hereby xreuled, shall pass to any trustee, receiver, assignee fur the benefit of creditors, or any other person or entity, or by operation, of law or otherwise under the laws of any state having jurisdiction or the person or property of Tenant (hereinafter referred to as the "state law") unless the Landlord shall consent to such transfer in writing. No wecepfanec by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or t ocher entity shall be deemed to be waived, nor shall It waive the need to obtain Landlord's right to terminate this Lease for any transfer of Tenant's Interest under this Lease without such consent. F. The provisions of this Section Six shall at the election of the Landlord also apply to and bind any Guarantor of this Lease. is SEVEN. LITIGATION. In the event The Landlord or its agents, without fault on its or their part, become ' Involved, through or on account of the terms of this Lease, or through or on account of the occupancy of the Demised Premises by the Tenant, or the conduct of Tenant's business upon said Demised Premises, in any controversy or litigation, the Tenant shall upon notice from Landlord or Its agents, immediately fake all necessary steps to remove said ;b `, f Landlord's eonbtecsiua with or liability under such controversy or IWgmtion, prniwlurly If such coninworsy for IIIlgalian throws any aloud or encumbrance uplift the title of sold'Londlord in and to ilia Dcmised Prauiscs or She Shopping Center provided nuverlbeless but if the Tenant believes it has rood and valid defense, or claim, which lenunt• desires to obvert and maintain throughout such contruversy, ur Iitigaliun, ilia Tcnlot shall hive Ihu right lo du su provided It lint enuculux and delivers to the Landlord an iudemdfybfg bond wish surety botisfmclury go Landlord, and discharges any and all finul Judgements, liens, casts, damages, expenses 'old obligations of Landlord whatsoever, in, or arising out of Ihu controversy or lolgutiun Involving the Landlurd or its agents, Including all culls, expenses and attorney's (eov Incurred by Landlord or Its agents protecting their Interests or defending themselves In such controversy or litigation. EIGHT. UTILITIES. Tenant shall be solely responsible for and shall promptly pay upon slta bills being rendered therefor by Ilia supplier thereof, and before the same become delinquent, wry load all separate metered or nteusured (or In list: caw of a muster muter, prorated) charges for the lose and consumption by ilia Seamus of the Shopping Center or hum, air conditioning, sewer, water, gas, electricity, and any other utility icrvice utilised in the use mild Occupancy ur ilia Dentiwd Premises by the Tenant. The Tenon[ shall use reasonable difigcuce off ilia conscrvatiuu of thew ulllilius, mail ugrecs that It will nil without the prior written approval Of Laadlurd, cause or permit ilia use of [ cunsunlpalon thereof to occur during any periods that the Shopping Censer is not open fur business to the general II public, nor will Tenant Install any equipment which will cxee •d or overload the capacity of any utility facilities, it being 1 unduntuud Ihu[ should any equipment IasiA"ed by Tenant require additional utility S'wellitlcs, ilia same Shall be I+ Installed u1 Tununl's capensu condilloned upon the prior written approval thereof by Landlord. 'NINE. COMMON AREAS. In addition to the Demised Prmdscs, the Lundlurd ahull male available So the f Tenvnl both Common areas within or adjacent to The building of which llte Dcmised Premises is a part and elsewhere upon Ilia Shopping Center, together with any Common Areas provided by mamas of truss or reciprocal casement ugruemunu (huruln " REA") as Landlord shall, front lime to lime, deem to be apprupriwic for the Shopping Center, And- ' Lundlurd shall operate and maintain such Cummmn Areas for (heir Intended purposes, subjuci at all limes to, and revervlftg until llte Landlord the right, exercisable In Its sale discretion, but nut more I•requcatiy than tine (1) day in Ouch calendar your, to cluia off ilia Common Areas and deny access Marcia in order to prevent a public dedication ! Ihuruul' by uparatlun of law and to assure that the same will remain privwlu property. Tanana shall have nunexclusivc right during ilia taro to use (fur their intended purposes) the Common Areas fur itself', gas employees, agents, cubiuniurb, and Invilues, subjucl however, to the provisions of this Paragraph Nine. Landlord shall have ilia right, at oily time and from time Ili time, to change the size and/ur location and/or elevation and/or uamrc of the Continual Areas, or way purl thereof, including, without Iimltailun, the right to lucu[c thereon Masks and/or other structures of tiny type. All Common Areas shall be subject to the exclusive control and managanaau[ of Laidlurd, wild Landlord shall have Ibu right, at ally time and from Woe to time, to establish, modify, amend mid enforce unilurm rules And rugululluus with respect to ilia Common Areas and'use thereof. Turning agrees to Abide by mid to conform to such rules mild rugulullous upun notice [hereof, to cause its business agents, invitees, licensees, unp[oyees unit agents, so to •abide vital conform. Lundlurd rascrvcs the right, from lime to tone, to utilize puriiuns of ilia Cummuu Areas fair such ; uclivlllab ub In the judgement of Landlord will promote Ilia business activities ill' the Shopping Canter all the general public. The Lundlurd shall maintain or cause,, to be maintained Ilia said Common Arens in A newt, clean, orderly and r operable condition, pruperly tightened, heated, lord sir conditiuned (if upprupriaic), but all expenses in connection Iharewilh shall be chwrged and prorulcd in The manner hereinafter sat forth. It is understood and agreed That the tariff "uvpensub" In [lie Immediately preceding sentence, shall be construed to Include but not be limited to, all sums expended or Incurred by Landlord in connection with the Shopping Area and/ur the Common Areas fur all geneful . muiftlcounea unit repairs, (Including those made in performance of Landlord's obligation under mild pursuant to Purugruph 'three hera,0, resurfacing, painting, striping, cleaning, sweeping, and providing junhurial services; munugomm iervicas mulnicuance and repair of sidewalk, curbs, Shopping Center signs, sprinkler systems, planting tit and landwuplnu; providing lighting and other utilities; directiunal signs and other markers and bumpers; the t operation, maintenance and repair of any Ore protection (including sprinkler) system, storm drainage systems and usher utility byilums; ilia cull of all personnel go Implement such services including, if Landlord deems necessary, the cost of providing security guard bervice;.uny and all personal property Saxes and •rsiassutcnts tin the improvements and land comprising said Common Areas, us well as any governmental impusitfun or surcharge Imposed upon Landlord or .; ussessed against ilia Common Areas or any portion thereof; the fees, costs, or expenses, if wry, required for ilia muiatenunce and preservation of any rights arising under any REA; the costs or expanses, if may, of pruviding and maintaining any security alarm syslcm for the benefit of lire Tea nis of the Shopping Center; depreciation of any machinery and equipment used In ilia maintenance and the operation of the Common Areas (if owned) and/or the rental paid for such machinery and equipment (if rented); premiums for insurance coverage fur ilia Shopping I(including ? Ilia buildin • s aCosier of which the Demised Premises Is a part) under such policies with such companies and in such limits us Landlord may In Its judgement determine to select (including but flat Limited to rite insurance with extended coverage, nubility Insurance covering personal injury, death, and property damage with A pcrsunal injury endorsement covering false arrest, detention or imprisurment,,mageiuus prosecution, libel and slander, mad wrongful entry or t} evicilun, worlauen's cmnpunsrliun insurance, plate glass Insurance, rent insurance, contractual liability Laurance, •rnd fidelity bonds); the coil of removing snow, lee, rubbish and debris from [ha Shuppiug Center, as well as ilia cost of Inspecting Ilia same and regulating traffic thereon; the cull of healing, venlilwung and air cunditioning enclosed Common Areas; th^ cost of providing and replacing uniform for, as wen as fur the gross compensation of all personnel required to supervise and accomplish the foregoing; the rental paid for any music service programs and/or loudspeaker systems provided for the Shopping Center generally, Including the cost of furflishoag the eleciriciy therefor; plus an umuunl equal to fifteen (15%) percent of the final of All such expenses, whether herein specifically mentioned or otherwise contemplated by Ibe intent hereof, to reimburse Landlord for its administrative and overhead costs in, providing the accounting, bookkeeping and collection functions required in cunnectluu therewith. In consideration of Landlord's agreement to Operate and maintain the Common Areas, Tcnanl covenants and agrees to pay a proportionate share of the expenses advanced and/or Incurred by Landlord therefor in each Lease year or Purlial Lcuse Year (us those Terms kraph are dunned In Para 19 hcrcuQ during the term of this Lease, as h home erein 6gforc provided, Whnu the Tenant's proportional. share of such cspcnses shall not exceed a soul tyurl to bite product Obtained by multiplYing (f) the lolul of all Expenses advanced sir Incurred in each Lease year a fractlal the utnerulur of which shall be the number of square feel of flour area In the Ucnllsed Pren a which shall be the numher of square feel of leasable fluor urea In , ses r by e aid (ill a f ruelatut of esllmale the tuna" bust a such expense 4 the Shu u1 fur the ShoNNing crater on the basis of Its rapcricnce and reasonably annually 6 Cemef, the Landlord shall annually together rl wish exp Its e mms 1111 ur 1 +n4 the Tenunl shall pay to the Landlord, on the frs day ofouch share fe titw month, reaso a unAly Inslallmcm of minimum renl due hereunder, an amount equal l 1f12 ul' its praportinnalc Ihcreodi As won six practicable following the close of e Lundlurd shall submit to Tenant u Obligation here n e the actual amuunl of the. eapenses advance acry d Lease and/or Year, a ou incurred by Landlord In performing ill If ulln1amuunllof IhetLandlord's eslimule the, eof Lease fur wchrlmmedialld amuunl of'1'enunt's prupprltunul share I be rua bvl balance the the una due part(thereon, or ovcrpaymenl thereof, in the ease may be. Apprup Lease year an Thshall ount its madc e bet', sin demand, an the basis of such slulgntcnt. E be, Appruni sdjua lly days after su 41nJn u umlnoenl of f 4ch Its r after su mis assigns, us to file mailers act forth the if no ubjectlan is raise) with rats cc bnil»iun of each'Iutemenl to Tenuil, R p on Tenant, records at the uliices of Landlord during 1 Tenunl sh if have the right to examine Lamllurd's buokxland (9U) Y ordinary business hours not inure than once In each Lease your fur the NurNose of vurlf ing the matters set forth in the stalemgnl forll is not nualcl the lint Lease Your (sir Partial Lease Ycur cxponscsfur opcrutin. l ) us the rall may be the Tenant's c tlaiaicall1pr a purtl flute 11ar1mof 1i`ring and amounts Oct I'urth six Inlti:dCommoo Ar Ill,, Com ea Churn?'i °rrJS of the Shu In ._ hcrcundur rod subject the unnuul adjuslmcnt hcrctofure lee One hereof, W CsamC "ha" be do anal add Wn tal rent be terminated 6y reason of default on lU purl, sir if 11 hats to take pus?c» lu niuf 11 r Urtu cJ Prgl'Cl he a h I W file Least! t Is uuhleOpenacanfTenpinl ugn?s Ihul Ihislls n Itlueber unslrucd? six alpcn•I1y,116u1 r aihcr rs a ponfu4 of the le share of measure of Landlord's drrluges In the evanl of bite 6rcuch of this Lease 6y'1'cnwnl lea al'uresri?I'p4r the g Proper TEN. S'T'ORE APPEARANCE OUTSIDE. Trnaul Ohall muinlrin its show windows, il' aiy, La •r flirt aid aeon condition, shall keep the sidewalks 10 the general a fluff public, all Ifaxh and garbage WIIhin the Demil gums ad mccal d Premixs ' orlwithin of and hazard closed lew' and (reel fron, anykl In sir bou t the Dcmulsd Ptemllscfor s, the regular rdjac cunku' N of trash •rnd gruge,'1'tfianl shall not burn Irml, of our shall Tenant permit pick to exist about the sums, , refuse Or gar6u W iu accumulate ur1 lire + ELEVEN. SICNS The Tenunl shall not dis)11my any sign, piclure, adverif.senaum, awning, merclirndlx or (logical on the outalde ul'the building of which the Demised , 6lsla e glass plat Premises is r pan , our all fife iatcriur or exterior of' any cat, of the DcnllcJ Premiscs, without the prior written consent of Lundlurd flat had wad ubtwincd in each ' ti shall be 'lie obligation of the Temuit no Install Uginfsed Premises, r penuamenl load Ih outdoor, IlluntinutoJ sign. display nlaiutaio 1}oat identifying its ealllcr er» upcratf siwan tifihe accordance will, 1ac4dc of all, subject to a plrn sir sketch thereof to be prepared by Tturnl and submitted to Landlord for its prior wppruwhich and ! approval shall nut be unreasonably willlield, 7'o establish guidelines fur file signs, lypu, color and design or such sign, Landlord has Prepared Tenant Sign Standards, the 'mint being uiac6ed hretu, made a part hereof and marked requircyuircmcnts gicrcin set forth. Exhibit I'D", bring s Intended that TenunI's plan or sketch of said sigif stall be in pursuance of specifications and In udditfun In the foregoing, Tenant shall have the further obligation 14 instali, dis lu such under-cunupy sign identifying Its business operation, as Landlord may require in the event there is iucludcd In tilt overall design of the Shopping Center such a canopy N Y and a is sprier maintain Tenant's under-croupy sign shall be subject to structure. In that Evenl, the size, style , color, relating to such signs as promulgated by the Landlord and design of the and in accordance with the standards, apccitications, and reyulremerib . All work required fur Ibe Imtalluliun and maintenance of the aforementioned signs, sir either of them, shall be Pgrformud by Tenant In It gaud and wurkmuNike manner, in accordance with , regulations, coats and 1 whatever ordinances req q the authorities of Landlord o f In paving conjurialdilclion nection cctiun th the ruts whatever erewllb. nn lb thercuf, al the 1019 Cost and expense of the Tenant will' no expenditure -TWELVE. OUTSIDE DISPLAYS. The TenailYhall nut the Demise) Premises i 11134112Y show bases of other s is a a part, sl upsiron any the Cum object an die outside of the Demised Premises I{ ' umman Areas adjacent o the Demfscd Premises, or the building of which sir t ?. T11IRTEEN, INTERIOR ALTERATIONS. Tenant Improvements q .ire, Provided thh that Ili or, nun-xlruclurol portions , al its expense, make such atterwtium and of fiDemY ised Premises and install Interior partitions as it may neratio rc done in he Written approval of the landlord be first obtained and that such improvements and allcrulions arc d in r wurkntpnlike murmur In keeping wild all building codes and regulations and fit no way llic structure of that Demfscd premises, provided at the espiruliua of this Leme or ;nay eslcaslon thereof, Tenant, if rgyuesled to du sit by Lundlurd, at Its expense, shall restore the within Dcntised Premises ill its original condition and repair any damage 10 the Demised Premises resulting from the butwiawlfun of removal of such par Willits, fixtures, or eyuipmunl us may have been installed by Tenant. The Landlord reserves bite right, before appruving any such changes, additions, or alterations involving coxes and expenditures in excess of $5000.00 Ill require the Tenant to furnish It a good and sul'licfcnl bond to assure that the Landlord Is indemnified and held harmless (rum the payment of any claims, by way at* either damages or liens. All of such changes, additions, or alleruliuns shall be made solely of the expense of the Tcawnl and .t project, Indemnify and save harmless the Landlord on account of any inj f lilt Tenant agrees to ury to any persons or property, by reason of h 9 . I any such changes, additions, or Wicralionx, wad lO project, indemnify and save hunnlusb Landlord from the payment or any dOlm of any IJnd Or character on account of bills for labor or mulurlul furnlahed in coal fill therewith FOURTEEN. FIRE., if the Dcmised PrCaliycx are damaged by tire or other insured casually, nut occurring through any act or failure to out on the part of Tenant, its agtnts, servant,, employees, ogled such damage can he repaired within 120 days of the dale of such occurrences, this Lease shag remain in full force and effect, and the Landlord shall prumplly repuir such damage ill Its expense, and In the event, there shall be a proportionate abatement of rent for a much of Ilia Dumbed Premises as may be unlenunlublc during Ilia period of repuir or resloratuu. If in the opinion of a registered Architect or Engineer appointed by she Landlord the Demised Prendses are damaged by lire or other casually to such sin extent that the damage cannot be repaired or restored within 120 days from Ills dale of such occurrence, or that such chu uge is due to any act or failure to act on the part of the Tenant, Ili agents, servants, ur employees, this Lease shall Iceminale at the option of the Landlord upon written notice given within thirty (30) days after such occurrence. If this option Is nut exercised by Lundlord, than this Lcase shall continue In full farce and effect. If 25% or more of Ilia building of which the Demixed Premises is a purl is dantagcd by lire ur Other casually in such on talent Ihaj the sanau cannot be reslured within 120 days of the dale of such uccurrence, thh Lease may be conceited at the option of the Lundlurd upon thirty (20) days written nulic:%frum the date of such Occurrence, even though the Demised Premises have nut become ungenamoblo, and there shall be a prupurlionatu adjustment of rent to Ilia dale of terlninullun. In addition, there shall be no obligation on Ilia part or Ilia Landlord to repair or rebuild during Ilia last three (J) years of the form of this Lease unless Tenant within'ftReco (15) days after such occurrence, shall have exercised any option to attend the term of this Lease that may be at forded to Tanana under the terms hereof. LandluetN ubliguliun to repair or iibuild pursuant Willis Paragraph Fourteen shall be flitted to a basic building mad Ilse replacement of any Interior work which may have originally been installed Marcia of Landlord's cost. Except as herein provided, there shall be no obligation an the part of Landlord lu repair at rebuild in case of lire or other casually. FIFTEEN. HOLDOVER. If the Tenant shall occupy Demised Prconlses without the wrilleo consent ur the Landlord offer file expiration of the term of this Lease, aOd renris accepted Pruitt said Tuounf, such occupancy and payment Shull be construed us an calension of this Lease for the farm of one mum b only from the date of such expiration, unit occupation and payment thereafter shall operate to extend the term of this Lease for but one muath at a lime unless other terms of such extension are reduced to and expressed to writing and signed by the parties hereto. In such event If either Lundlurd or lenual desires to terminate said occupancy al the end of ugly month after Ilia termination of this Lease, the party so desiring to terminate the some shall give Ilia Other party al faults twcaiy (20) days written notice to that effect. Failure on Ilia part of Tenant to give such notice shall ubliguie it lot pay real fur an uddiliunul calendar month, following the month In which Ilia Tenant has vacated flan Demised Premises, il' uch occupancy ctnuinues without The consent of The Landlord, Ilia Tenant shall pay to Landlord, us liquidated damages, double the umount of real and all other charges at Ilia highest rate specified in this Lease for the time Tenant retains possession of like Demised Premises or any purl thereof after lermbaulion of the term by lapse of Unae or otherwise. SIXTEEN. INSPECTION. Landlord cipressly reserves the following rights after; (a) to enter lite Dendbud Premises at any time to examine or to make such repairs, additions or uheraliuns us it nay deem necessary for the safely, improvement, or preservuliun that car, or of the building of which the Dcmiltcd Premises is u part, but Lundlurd u»unes nu obligutiun ill make any such repairs other than as expressly slued in this Lease; used (b) to enter the Demised Premtsoa and display and maintain a notice or sign "FOR RENT" and/or "F'OH SALE" at ally lime within six months before file expiration or un the sooner termination of this Lease; mid (c) during or after the time Tenant abandons or vacates The Demised Premises or otherwise defaults hereunder, to enter •rnd decorate, rentudd, repair, alter or otherwise prepare the some for reuccupancy. The exercise ul' any reserved right by Landlord shall never be deemed on eviction or disturbance of Tcmuil's use and possession of the Demised Promises our shall it render Landlord table Ind any manner to Tenant or to any other person. SEVENTEEN. LIABILITY. Landlord shall nut be under any respunstbi0ly or liabilily Ian any way whatsoever for the quullly, quantity, Impairment, interruption, stoppage or other Interference with service involving water, sewer, heal, air conditioning, gas, electric current for light and power, telephone, or any other service. Landlord shall not be liable fur any damage to property of gallant or of others located on the Demised Premises, nor fur the loss of or damage to any property of Tenant or of others by lhrl't or uthcnvisc. Landlord shall nut be liable for any injury or damage to any property resulting [rum (bug not Walled lit) lire, explosion, falling plaster; ur ceiling tiles, steam, gas,-electricity, water, raa, snow, or leaks [rum any part of Demised Premises or from the pipes, appliances, or plumbing wurkx or from the refit, street or sub-surfice or from any other pluee or by dampness or by any ulller cause of whatsoever nature. Landlord shall not be liable for any such damage caused by other tenants of the building of which the Demised' Premises Is a part or persons in the Demised Premises, uccupanls of adjacent property, of the Shopping Center, or the-public, or caused by operations in construction of any private, public or quasi-public work. All property of Tenant kept or stored on the Demised Pretdscs shall be so kept at the risk set Tenant only and Tenant shall hold Landlord harmless from any claims urising out of damage to the sane, including subrogatiun claims by Tananl'x Insurance carriers. EIGHTEEN. LIABILITY responsible for &my damage to lit pr pliry of We Landlord PLATE whl h m yre ul Irom any use ' CLASS - TENANT. The Tenant to be or any act dune thereon by the Tenant or any perxun coming or being thereon by the license or permisalun of the Tenunl, express or Implied; to save Ilia Landlord harmless tram any liability to any person or Estate, for damage to person ur properly, rebutting from any such causes, and to protect such liability with comprehensive public liability and properly damage insurance, having a single limit liability of at least $1,000,000 lbr danlugc to all property and for all occurrence resulting in bodily and/or personal Injury to or the death of one or more persons and cunsequenlial damages resulting therefrom, and to furaish Landlord on die Commencement Date a cerill1cw1e issued by the Insurance A I 10 currier evidencing such Insurance In force, with Landlord and Its Agents covered thereby. Tentoai agrecs to replace all gives broken, damaged, or dcstruyed In any manner whatever, the Tenant assundug all respunilbility for any plate glass In the Demiscd Premises, used to cause such Iiublllly to be protected by plate glum Insurance at TenunPs expense, and further to deposit such plait glass Insurance policy or curliliculu shuwing such Insurance. Tu force with Landlurd at tits Commencement Date of The term of this Lease. fn the event that Tenant dues nut procure such Insurance as afuresuid, Landlord may, ai its uptiun, purchase the same In the nume of Tenant and/or may at Ibe option Include such coverage in why master policy carried by Landlurd. If Landlord exercises 114 rights hereunder the Tenant shall,. upon demand, pay all culls thereof to Landlord together with an administrative charge of $100.00 for each such coverage made by Landlord use behalf of Tenant. NINETEEN. PERCENTAGE RENT. Tenanl agresy to pay Landlord as rent. In uddiliun 149 the foregoing minimum rent, u sum equal to The amount by which the minimum rent to be paid fur any Leese Yeir ( as hereinafter defined) Is less than the Pereenluge Rent Factor times or multiplied by the gross sales (as hereinafter defined) of ilia Maned Premises, for said Lease Your, and sums being hereinafter sometimes referred In as "percentage rent". On or before the tenth (10th) day after the expiration of cuch month Tenant shull submit to Landlord a sunscreens ahuwing, In reusunuble detail, the national of gross sales of the Demised Pretnbes during the preceding month. If the Percentage Rent Factor Imes or multiplied by the gross sales made during the preceding munch shull be In excess of llte minimum runt payable with respect to sold prfgeding month share the aomum of such excess shall be pull over to Lundlurd ut the same line as the rendition of saidmunthly alutcohtnt. If ilia Cuoaueucennmse Dale shall be other than the liras day of a calendar month, then the first month's gross sales slutcnsent and percentage rent due, pursuant to this paragraph, shall lie-Jude Ilia purth m of the month from ilia Commencement Ouse to ilia firs) day of the next succeeding culendar month. Each Ltuse Yeur during the term hereof shall he considered as an independent accounting period fur she purposes of computing and determining the amount of percentage rent, if any, payable hereunder, and the amuunl of gross suits in oily Lease Year shall not be carried over into mty other Lestsc Year. If list guaruneed minimum and percentage real Is paid by Ihe'rcnans with respect to any Lease Ycur shall exceed nhe Perceutkige Ilene Factor times or multiplied by the Tenant's gross soles for such Lease Year, Ilse amount of such excess percentage rents actually paid shall be credited against the nest accruing Inslrllmcnf or installments of minimum and/ur percentage rent due hereunder. The term "gross safes" shall mean the entire amount of Ihe,aciual sales price, whether wholly or partly for cash or ion credil, of all salts of merchandise and services, and all other receipts of kill husiucas conducted in or front the Demiscd Premises, including catalog, electronic and telcphune auks, and including all deposits not refunded 16 purchasers, orders taken lei at from Ibe Demised Premises Wlliuugh said orders may be filled elsewhere; and sales by any sublessee, concessionaire or licensee in or from the Dcmiscd Premises shall be treated as Willa sales were made by Tenant Willi Ilia proper nutaliun as lit the source of such salus, unit all wishous credit to Tcnam i'or uncollected or unculluclible credit accounts. There Shull be excluded [rum "gross sales" and sums collected and paid out for any sales tux or tar based upun the sale or sules of merchandise and required by law, wbcihcr now or hereafter in farce, to be paid by Tenant or collected from its customers, to the extent it of such taxes are to be charges used collected separately used to he remWed by Tenant In the luring authorities. The term "gross sales" shall nol include ilia exchange of merchandise between The stores of Tenant, If any, where such exchange of merchandise is made solely for the convenient upurutiun of lhe'rcrenl and not for the purpose of consununating a sale which has Iherctolbre been made. ul, fn, from or upon the Demised Premises or for the purpose of depriving Landlord of the bandit of a sale which would otherwise be made at, in, from or upon ilia Dcmiscd Premises; line shelf said lernt include list! amuunl returned to shippers or manufacturers, nor the amount of any cash or credit refund made upon any sale where merchandise sold, or some part thereof, is thereafter returned by the purchaser to and accepted by ilia Tenatrl. Each sale upon installment or credit shall be Irculed as u sale fur the full price in the munch during which such sale shall be made irrespective of the time when Tenant shall receive payment (whether full or partial) from Its eustumcrs. Tenure shall and hereby agrees to keep In the Demised Premises, during ilia turn hureof, fur •a period of three (3) consecutive years following the end of each Lease Year, a permanent, cumplce mid accurate record of all gross sales and revenue derived from business conducted In the Demised Premises fur such Lease Year. 'tenant further 'agrees to keep, retain and preserve for at feast two (2) years alter she expiration of each Lease Year, all original sales records and sales slips or sales checks and other pertinent urginal sales records. Accurate nun-rextttabte rash registers or other modern systems shall be Installed and kept, or caused to be installed and kept, by the Tenant within the Demised Premises, which shall show, record and preserve, in complete detail all items making up gross sales, us heruinubove defined. All such records, including sales tax reports and business and occupation tax records and all other records and books kept by Tenant in relation to the business conducted on ilia Demiscd Premises shall he open in the inspectiun used audit of Landlord load Its representatives ui agents at all reasuoablc limes during ordinary business hours. Tenant shall also submit to Landlord an or before the thirlicth (30ib) day following the end of each Lease Year ae the piece then fixed for the payment of rem, a complete audited statement made and certified by •a Centred Public Accountant and abu certified by it duly authorized-officer of Tenant, showing accurately In reasunable detail Ilia someone of gross saics made by Ttnunt told Its sublessees, cuesccssiunuires, or licensees, If any, Upon and within the Demised Promises during the preceding Lease Year or Partial Lease Year, if any, and shall submit on or before the Ihirliclh (301h) day fallowing she expiration or Iermluatun of the term a like statement c'ove'ring the preceding Lease Year or Partial Lease Year, If any, In the event shut the Tenant or parties affiliated with Tenant conduct one or mare operations or stores either within the Shopping Center or elsewhere, the Landlord Is hereby given the right to include in its audit an inspection of all books and records of such other stores or chum-wide operation la order all salbfy Itself as its lie proper allocation and inclusions of gross sales to the Dendsed Premises. Failure of the Tenant its meet a scheduled audit date at the time fixed by the Landlord shall be deemed a default under Ihls Lease and Landlord, in addition to off other remedies afforded to it under this Lease, slsall be promptly reimbursed by Tenanl for oil costs of such scheduled audit together with an administrallve fee of $1110.00. Fuilurt of Tenant to promptly supply Landlord with The monthly and/or annual reports required hereunder 11 shall be deemed a default under this Lease and, In addition to all other renedics afforded to it under this Lease, Landlord shall be entitled, without notice to the Tenant, I# conduct ud audit of Teouni's bull" for such period or periuds during which Tcnant has failed to supply Landlord with the reports at the cost unit expense of the Tenant of Tenant lugelher with an adminiatrutive (cc of $100.09. The receipt by Landlord of any statement or payment of pcrecaluge real for any period or the Prilurc of Landlord to muke an audit fur said period Shull neither hind Landlord as to correclncas of the ahtlemenl or the payment, nor bur Landlord from collecting at any time lbercafler percentage rent due for said period. If any audit by Landlord or Its agents of Tonsenl's records shall revcal a deficiency of any payment of perceutagc rent Tenant shall forthwith pay to Landlord the amount of deficiency together with an interest at a rao of twelve percent (12%) per unnum from the date when said payment should have been made, together with reasonable coat of such audit. It is agreed that nothing committed In Ihd Lease shall be deemed or construed as creating a parnership or julnl venture between Landlord unit Tenant, or between Landlord and any other party, or cause Laaudlued tit be responsible in any wuy for tine debts or ubligutiuns of Tennant, or any other party. Fur the purposes of this Lease, the "first Lease Year" shall mean a period beginning January 1al following the Commencement Duce hereof unit cslcnding twelve (12) calendar months thereafter, ending December 31st, and each subsequent Lease Your shall be the twelve consecutive culendua month period thereafter (January lit to December 31st). The period from the Commencement Date of this Lease to the nest succeeding Deceuber Mail, and from the January Ill neat preceding, •rnd extending to the lerminaliun,d?ule of this Lease, shall be considered as "Partial Lease Years", and any changes under this Lease which are cumputcA an a Lease Year balls shall be appropriately pro-rated all as tube cuntpuled as scparale mid distinct aceuuntlny period* in accurdance with the terms and cundilions aflaresuid. TWENTY. BUSINESS OPERATION. Tenant shall, during the term of fhb Lease, continuously use file Dcmired Premises fur the purpose stilled an Page One of this Lease, currying till therein Tcnunl's business undertaking diligently, assiduously unit energetically under the trade Dome stated tin Page One. Tcnrnf shall umiutabn tin the premises a substantial stuck of goods, wares, and merchandise and equipment, adequate to assure successful operation of Tenant's business. Tenant shall keep the premises open and available fur business activity therein during all usual alloys and hours as ure set by the LLndlurd except when prevented by strikes, fires, casually or other causes beyond TenunPs reuaonubfe control. Tenant shall not divert elsewhere any trade, commerce or busincas which ordinarily would be trunsucted by Tenant in or from the Demised Premises. 't'enant Shull nut conduct any "fire sale", "distress sale", "bankruptcy sale", "going uul of business sule", or any other sale designed to convey to the public that the business operratiuns are to be discontinued •rnd Tcouni shall not apply for or cause to be applied from any municipal, state, local, or federal license or permit applicable to such kales. TWENTY-ONE. WAIVERS. The failure of Landlord to Insist, in any one ur more instances upon a strict performance or observance by Tenant of any or the covenants of this Louse, or to esereiae any opliun herciu contained, shall nut be construed as •r wulvcr or rulinqulshnlenl for file future of such euvenual or option, but lite saunc shall continue and remain In full force and effect. The receipt by the Landlord of real, with knowledge of the breach by Tcnunl ill' any covenant hereof, shall not be deemed a waiver of such breach and no waiver by lite Landlord of any pruvlaiun hereof ]hull be deemed to have been made unless cipressed In writing mid signed by the Landlord. Even though the Landlord shall consent to tin ussignmenl andlor subletting hereof no further assignment and/or subletting shall be made without express consent In writing by the Landlord lirsl had and obtained in each instance. TWENTY-TWO. SUBORDINATION. This Lease, at the uptinn of Landlord, shall be subject unit suburdinulc at all limes, to the lien of the mortgages now or hereafter nrade upon file security of the shopping Center • or the Demised Premises, •rnd to all advances made or hereafter to be made upon Ilne security thereof, and subject wait ? subordinate to the Ikn of may mortgage or mortgages which at any time may be mode a lien upon the srnne, •rnd subject and subordinate to any lease or other arrangement or right to pusaessiun under which Landlord is in control of Demised Premises and/or the Shopping Center and to the rights of the owner or owners thereof, andlor the rights, i privileges, unit burdens arising from any REA affecting the Shopping Center. The Tenant shall execute and deliver such further Instrument or Instruments substantially in the form of Exhibit "E" attached hereto subordinating this Lease to file lien of any such mortgage or mortgages, lease or leases, as shall be desired by any noregagec, proposed ! mortgagee, lessor or proposed lessor. The Tenant hereby appoints the Landlord the atorncy-in-fact of the tcnanl, to exccule and deliver any such instrument or Instruments fur the Tenant. The Tenant shall have no power to du any act or make any contract which may create or be the foundation for any lien, mortgage or other encumbrance upon the estate of the Landlord or of any interest of the Landlord In the Dcmisid Premises, or upon or in taw building of which the demised Premismis a part or otherwise within or upon the Shopping Center, It being agreed that should the Tennnl'cause any such improvements, aloraduas or repairs to be made or material furnished or labor performed therein or thereon, neither the Landlord nut the Demised Premises nor any other portion of the Shopping Center shall under any circumstances be lieauble fur the purpose of enforcing payment of any of the expenses incurred or for the value of any work dune or material furnished thereto or any part thereof, the parties expressly intending that hereby all improvements, alteraduns, repairs, materials and labur shall be performed at the Tenant's sole cost and expenses and the Tenant shall be solely and wholly responsible to contractors, laborers unit malerialmcn furnishing labor and material In connection therewith, all such laborers, materialmen and contractors being hereby charged with notice that they must look solely and wholly to the Tenant and the Tenant's Interest In the Demised Premises, to secure the payment of any bills for any such work performed and materials furnished. TWENTY-THREE. DEFAULT. (a): (1) If Tenant shall default in the payment of any rent or other payments required of Tenant, or any part thereof and if such default shall continue fur live (5) days after the payment shat be due, or (2) if Tenant shall default in the performance or ubservance of any other agreement of condition tin its part to be performed or observed unit if Tenant shall fail to cure said default within lea (10) days alter notice of said dl ell from Landlord, or (3) if any person shall levy upon, take, or attempt to take this leasehold interest or any p• 12 Upon uxcvun herLeast: e or or agreement other proce respect to any y other Lea ss of law, or (4) If Tenant or tiny W'Idlate of Tenant shall make default with agreement belween it or Landlord or any aBillale of Landlord, or (S) if file premises shall he descried, vwcutcd, abandoned, or business Operations shall nut be conducted Iherche fur a period Of two (2) of more days, or (6) If Ibis Lease or any other Interest therein shall by operation by law devolve upon or pass to any. Person or persons other Ibsen Tenant, or (7) If Timing shall fail to move into and lake possession ul'the Demised Premises used upon for business within thirty (38) days offer Lundlurd's giving notice to Icnuml that the Demised Premises are ready for Occupancy by Tenant, then The Landlord may treat the occurrence of any one or more of the foreguing events its u breach of this Lease, and in addition to ally or lit' other rights of remedies of file Landlord hde'undur used by tile taw provid it e, II shall be; sit the option OfyIho Landlord, without further notice or demand of any kind to Tenant Or unit' other person.. (a) the right of The Landlord to declare the term hereof ended wild to reenter tine premises and lake possession thereof and remove oil persons therefrom, and thereon Of hereunder; and/or ^• the Tenon strap have nu further claim (b) the right of the Landlord without declaring gills Lease leemhutvd to revolter the prvndses and, ,Occupy the whale or any part thereof, remove all persons wild property lherefrum either by summary dispossess proceedings or by a suitable action ur proceeding at law or In cqully, or by force, or Otherwise, without being liable for any damages therefor, no such reentry by the Landlord to he deemed or otherwise cunstrucd as an acceptance of a surrender of Inds Lease; mid/or (c) the right of the Landlord, even though if may have reentered the premises, to thereafter to elect to terminate this Louse need all the rights of the Tenant in or to the premises. Should the Landlord have reentered the promises under the provisions of sub-puragraph (b) uhuvc, the Landlord shall nut he deemed to have terminated this Leave, or released the Tenant front lib liability to pay the rents and additional rents then owing and due and/or thereafter to accrue hereunder, lbcrcalicr to accrue, or its liability fur dwnuges under any of the provisions hereof, by any such revelry or by any action in unlawful. detainer, or otherwise, to ubluin pussessiun of the dumiscd Premises, unless the Landlord shall huvc notified the Tenant in "riling that it has so elected to terminate this Louse, and the Tenant further covenants Ihrl the service by Landlord of may notice pursuunl In the unlawful detulner staluies of the Slut where Ibe Shopping Center is situulcd and the surrender of possession pursuant to such notice shut[ not (ageless the Landlord c[oets lu lieu contrary we the tittle of or at oily time subsequetl to the serving of such notices and such election Is evidenced by a written notice its lite Tcnam) be deemed to be a Icrmination of this Lease. ht the event of any entry or taking pussessiun of the premises us ufuresatd, the Landlord shall have fire right, but not the ubliguliun, to remove therefrom oil or any purl u(fhc personal properly located therein asset may place lieu same fit storage at a public wwrehuusc of the expense •rnd risk ul' the owner or owners thereof. Should life Landlord elect to terminate this Lease under fine provisions of sub-fewrugrateln (a) or (c) above, the Landlord may recover from the Tenant as damages; (1) the worth at the time of award of any unpaid reels and additional fools which had heel carried of the time of such termination; plus (if) tine worth at the time Of award of lho amount of the unpaid reins •rnd •rddiftunul real% which would have been earned after lerminallem until the time of award, plus; (iigthe worth at the time of award of the amount of the unpaid rents and additional rents fur the balance Of fine term offer the time of award, plus (iv) ally other amount necessary to compensate Landlord for all The dvirlmenl PrOxinmueiy caused by Tenant's failure to perform its obligations under ibis Lease or in which the ordinary course uf. things would be likely to result therefrom, Including, but nut limited to any costs or crpenses by Lundlurd in maintaining or preserving the premises after such default, preparing the premises fur relating to a new tenant, any repairs or alterations to We premises for sucb relcninb, leasing commissions, or any other costs necessary or appropriate to role the premises; and (v) at Landlord's election, such other amounts in addition to or In lieu of the foregoing us may be permitted from time to time by the laws of the Stale where the Shopping Center is situated. As used in sub-paragraphs (T) and (if) above, the "worth at the lime'uf award" is computed by allowing interest at the rate of cigbecen percent (18°.6) per annum. As used is sub-paragraph (Iii) above, it,,''wurlh at the time Of award" Is computing by discuunling such amount at the lesser Of either the discuunl rate of the Federwi Reserve Bank signaled newest to the location of the Shopping Center In effect at the lime of the award, or eight percent (896). Fur all purposes of this Paragraph 23 the form "reel" shall be deemed To be the minimum annual rental, percentage rental and all other sums which by the forms hereof are deemed additional real or are otherwise required to be paid by Tenant pursuunl to the terms of this Lease. All such sums, other than rite minimum annual rental, shall be computed tin the basis of the average monthly amount thereof accruing during the immediately preceding sixty (68) month period, except that if it becomes necessary to compute such rental before such a sixty (68) month period has occurred then such rental shall be computed on the basis of the average monthly amount hercnf accruing during such shorter period. ht the event of default, till of the Tenant's fixtures, furniture, equipment, Improvements, additions, alterations, and other personal properly shall remain an the Demised Premises and In that event, wind continuing during the length of said default, Landlord shall have the right to take the exclusive possession of same and to use same, rent or charge free, until all defaults are cured, or at its option, at any time during the term of this Lease, to require Tenant go forthwith remove same, failing which the Landlord muy effect such removal at the sole cost and risk of Tenant. Notwithstanding any other provisions of the Paragraph 23, Ihu Landlord agrees shut If the default complained .t 13 of, other than for ilia payment of monies, is of such it nature that the suing cannot be r¢clilivd or cured within the period requiring such rcclilicalian or curing as specified In the written notice refuting thereto, tile" such default bball be deemed to be rectified or cured if he Tenant within such period shall have commenced file rectification unit curing thereof and shall continue thereafter with all due diligence to cause such rcclillcatiun will curing thereof unit dues so diligently complete The same. The remedies afforded Ilia Landlord in this Paragraph 23 shall be In uddiliun and sapplcnmental To all other rights fir remedies which the Landlord may have under the laws then in force. The wuiver by Landlord of uny breach of any term, covenant or condition herein contained shall nut be deemed to he if waiver of such term, covenant or condition should here occur any subiequnl breach of he sumo or any other term, covenant or condition herein cuntaincd. The subsequent acceptance of rent hereunder by Lundlurd shall nut be deemed to be a waiver of any preceding breach by Tenant of any term, nvcnaul or cundWon of his Lease, other than the failure of Tenant to pay he particular, rental so occupied, regardless of Lundlurd's knowledge of such preceding breuch at the time of acceptance of such real. No covenant, term, or caul iliun of this Lease shall be deemed to have been wuived by Landlord unless such waiver be in writing sigaed by Landlord. All sums other Ilion minimum rent Out and payable by Tenu I hereunder, such as, by way of example and not f ' In limitation, purcenluge rungs, common area malnlenunge etpopeus, utility charges, real cline Illicit, couperullve udverlising unit promutiunal charges, attorney'& fees, collection fuel mid cuurf casts shall be dented to be unit shall become additional rent hereunder whether or nut the same brti,dcsignamcd us such, mid shall be included lit the [arm "runt" wherever used In Ibis Lease (notwithstanding that The words "additional real" are used in specille cubes, but not used in other coves); and shall, unless otherwise specifh;ally provided herein,-be due mud payable on dnnand or together wills the nuxi succeeding inslullmnt of minimum rent, whichever ahoH firbi occur, and Landlord shall have the same remedies for failure to pay the same us fur a nun-payment of minimum rent. may, The parties hurelu distinctly cuvenual and agree that oily payment of real or uddillonal rent made hereunder u ngesllovlite erdueiunderlthis Lease, notwi hstanding any statem statement to file contrary endurbed con or uacco npanying each payment. TWENTY-FOUR. ATTORNEY'S FEES. Tooting agrees that in Ilse event thin any default by it in perfurnnunce of any of the terms, conditions or covenants of this Lease requires ilia Landlord, in ilia exercise of Its sole discretion, to enguge ilia burvices of any attorney, whether or nut an employee of ilia Landlord, lit enforce compliance by the Tenant with farms, conditions and covenants hereof, the Tenant will reimburse Lundlurd for any and all expenses Incurred In its use fur such allurney and in any action which said attorney may pursue. Such expenses shall include, but are nut limited to: legal fees, coup rusts, costs of filing and serving summons and complaints, etc. The farm "Maull" us used in this paragraph shall mean, but shall nut be cunstrued as being limitid in mtcuoing to nonpayment of. minimum rent, percentage runt, utility bills, tutus, promotion and advertising churge, and common ,area expense contribution. Tnum further ugrecs that should it commit any default or defaults under this Lcmu, Landlord may, at its election, inunediutely or of any time thereufter, without waiving any claim for breach of agrecmeu, and without notice to Tenting, cure such default or dcfaalts for Ibv aquatint of Tenant. If the Landlord shall fumigate on action or summary proceeding against the Tenant bused upon such default, ur If the Landlord shall cure such default or defaults for the account of Tenant, then the Tenant will reimburse the Landlord for the eipensc of attorney's fee and disbursements thereby Incurred by he Landlord, so far as the sumo are reasonable in amount. The coal its the Landlord thereof shall be due and payable on demand, shall be deemed to be addilional rent hereunder and shall be added to the Installment of rent nett uccruing or to any subsequent InstaRmcml of rent due and payable hereunder, of tint clcctiun of Landlord. Landlord shall not be responsible to Tenant for any loss or dumage resulting in any mminer by reason of Its undertaking and pursuing any of the rights sand remedies which by the terms hereof are reserved to and for the benefit of Landlord. TWENTY-FIVE. SECURITY DEPOSIT. Concurrently with he execution of this Lease, Tenunl shall deposit i with Landlord the sum set forth on Page One hereof as Security Deposit, llte same to be held by Landlord without liability fur interest, us security fur the full and faithful performance by Tenant of the terms and conditions by It to be observed and performed hereunder. If any of the rents herein reserved, or any other sum payable by Tenant to Landlord became overdue and remain unpaid, or should Landlord make tiny paymenls on behalf of Tenant, or should Tenant fail to perform any of ilia terms and conditions of this Lease, Itself Landlord, at its uptiun, and without i prejudice to any other remedy, to which Longford may have on account thereof, shall appropriate and apply said ; dapush er so much hereof ens may be required to compensate or reimburse Landlord. as the case maybe, toward the fl payment of rent or addiliunal rent, or loss or damage susitained,by Landlord -due to Ilia breach or failure to perform on the part of Tenant, and upon demand, tenant shall restore such security to the original bunt deposited. ' Conditioned upon the full compliance by Tenant of all of the terms of this Lease, and ilia prompt payment of all rents and ulher sums due hereunder as and when they fall due said deposit shag be returned In full to Tenant within thirty (lit) days after the end of the term Hereof. In The event of a safe of the Shopping Center or lease of the land on which it stands, subject to this Lease, the Landlord shall have the right to transfer life security to the vendee or lessee and Ilse Lmndlurd ahull be considered relcated by tine Tenant from all liability for the return of such security and tine Tenant abull look boicly to the new Landlord fur ilia return of the said security, 11 being agreed that this shag apply to every transfer or assignment made of the security to a new Landlord. The security deposited under this Lease shall nut be mortgaged, assigned or encumbered by the Tenant without the written consent of the Landlord and any allcntpl to do so shall be void. In the event of any rightful unit permitted assigrmnt of this Lease, the said security deposit shall be deemed to be held by the Landlord as a deposit made by he assignee and Landlord shall have no further liability with the respect to the return ` of said security deposit to the assignor. TWENTY-SIX. REAL ESTATE TAXES. As used herein, the term 'Taxes" shall mean and Include all roil 14 estate cases, assessments, license and permit fees, charges fur any easement, Including an NEA ( as horci leliewhcre defined), Inalnlahled fur the benefit of the Demised Premises and other gievcnunrmal levies and ehar4es of curry kind and nulurc whatsucver, general and special, extraordinary us well as ordinary, I'urescen and unforeseen, wild each and every Installmenl therein' which shall, or may during the term of Ihls,Lcuse be levied, aso,cmud, hopused, became due and payable or liens upon, or arise In connection with the use, occupancy or possessiun of, or grow due and puyuble out uf,,ur for, me cutire Shopping Center or any purl thereat, or uny rune or income received therefrom, or any land, buildings or other improvements therein, Including Interest on Installment payments used all caw and fees (including reasonable attorneys' fees) incurred by Landlord In contesting Taxes, assessments and/or negutiming with public authorities with respect to the same. If at tiny time during the term of this Lease Ilse methods and/or times of taxalion prevailing al the Cummcncument Dula shall bu altered all chat In addition to, or in lieu of or us u substntule for the whole or oily part of the Tuxes now levied, ussesifed or imposed on rcul estate us such, there shall be Icvhcd, obsessed, or Imposed (1) u lux on the runts received from such real estate, or (II) u license fee measured by lhe'rents receivable by Landlord from the Shopping Center or any portion thereof, or (III) a tax or license (tv Imposed upon Landlord which is otherwise measured by or based in whole or in purl upon rents derived from the whole Shopping Center or any portion thereof, then used ht ally of each evergs, the sonic shall bu Included in file cumputatiun hereunder of Totes. Tatum sit all pry bI each Tax Your during the term of Ihns Lease as additional real, u pngmninn le share of all such Taxes, at the limes and In file manner hereinafter provided. While life Tenant's prupurtionwic share of such Tuxes shull not exceed a sum equal to the product obtained by, (I) the total of all 'fuses assumed or Imposed against the Shopping Center in each Tax year by (if) if fractluof the numerator of which shall be the number of square fggl of floor urea in the Demised Premises and the denominator of which shall he the number let* square feet of leasable flour urea lot the Shopping Area, the Landlurd shall annually calimalc the lutes] anuuat of such Taxes fur the Shopping Center list the bash of its experience and reasonably anticipated charges ghcrefor, unit the Tcnanl blall Puy In the Landlord, tin the first crlcndur day of each month, together with Its monthly Inslailmunb of ndninmm rent due hereunder, an amount equal to 1/12 of its proportionate share Iherctel'. As soon as practicable following the close of each Tax Your, Landlord shall submit Its Tenunl a statement indicating the actoid amount of me Taxes asessed or imposed against Ibe Shipping Center for the immediately preceding Tax year, and life aruunl ul'thu resulting balance due thereon, or Overpayment thereof, as flit case may be, with an appropriate adjustment to be thereupon made between ilia parties, an demoted, an life basis of such statement. Each statement shall be binding upon Tenant, Its suecobsurs and assigns, as to the mailers set forth therein, If no objection is raised with respccl thcrclu withla ninety (90) days al'ler submission of each slufemenl to Tenafi. The term "Taus" shall not Include any inlerext or either charge imposed by oily losing authority us u penalty or delinquency charge, based upon twig payusivill if any tax obligation by the Landlord. The failure of Landlord to provide such statement to Tenant as required above shall not relieve Tensing of Its obligations hereunder or fur file specific Tax Year In which any such fuilurc occurs, nor shall such failure in any way rclicvu the Landlord from Its Obligation to provide such slafcmcnl. As used hurdles the term "I'ux Your" shalt fie deemed Its moon cacti twelve (12) islands period (deemed, for Ilia purposes of Ihb Paragraph 26 to have 36S days) established as The real ascots: Tax Year by me lasing authorities having lawful jurisdiction over The properly comprising the Shopping Curler. Fur and during Ihu Iirsl Tut Year (ur Partial Tax Year, as fine case may be) occurring during the term of this Louse, file Turning's ebfinite proportionoic shore of lite Tuxes applicable it) Ilse Shopping CL'nler shall be payable monthly in file anooualb set forth site Page One hereof us "Initial I'as Share", payable monthly as above provided, The sang to he deemed additiunal rung hereunder wild subject fu the annual udjusimum hereinbefure provided. Tcntinl covenants unit agrees lbul if this Lease Is lur ninried by reason of default an Its p;fn, or if it fails to lake possession of Dcmised premises or leaves the Demised Premises prior to life expirutiun of life term hereof, If shall remain liable to pay Its proportionate share of &uch Taxes.'I'Lowel agrees that I. ,this is nut to be construed as a penally, bug rather us a portion of the proper meabure of Landlurd's damages in flat event of a brooch of this Lease by Tenant as aforesaid. If at any lime during the term of this Lease, or any extension or renewal thereof, the laws of oily one or more of the jurisdictions In which life Shopping center Is located imposes, charges, ssscsbcs or levies upon or •against file . rents (whether guaranteed minimum, percentage rent or additional real, or any or all of the foregoing), or any other consideration in lieu of the real payable. hereunder, a lax, impositkun, charge, assessment, levy, excise fee it license fee, then in the absence of any provision to the contrary specifically contained in such laws, the sonic shall be paid In full by the Tenant and such obligation may be enforced isy Landlord In the some way and manner as provided for the enforcement of the payment of minimum rent, percentage rent and additional rung hereunder. TWENTY-SEVEN. EMINENT DOMAIN. If 10% or Inure of the building of which the Demisud Promises is a purl u l--_15% quiju more of the purpln public or b Center shall be acquired or condgmnul by right of eminent domain I'or any asi si-public use or purple than Landlord of Its election may lerinhfato this Lease by giving nblice to Tanaut of Its election to do so, and in such event rentals shah be apportioned and adjusted as of the dolt of terminullun. If the term of fills Lease shall nut he terminoled as aforedaid, then the some shall continue in full force and uffucl, file Landlord shall within a reasonable Ilene after possession is physically taken (subject to delays due to shortage of bolster, materials or equipment, labor difficulties, breakdown of equipment, government restrictions, fires, other casualties or other causes beyond the reasonable control of Landlord) repair or rebuild whwl may rcmwin of the Shopping Censer, exerting its bust efforts to preserve the Demised Promises for the Occupancy of the Tcuant. Should any such acquisition or condemnation Include the Dcmised Premises or any portion thereof and Landlord shall out elect to terminate this Lease as aforesaid, then and In such event a dust proportion of the minimum real shall be ubaied, according lo the nature and extent of the injury of the Demised Premises, until what may remain of fife Demised Premises shalt be repaired and rebuilt as aforesaid; and Iherewher a just proportion of the minimum rent shalt be permanently abated, according Its the nature and extent of the portion of the Demised Premises acquired or cafdemntd fur the balance of the term of this Lease. Landlord reserves to itself, and Tenunl assigns to Landlord, all rights to damages accruing an account of any .such taking or cundemnaliun or by reason of any act of any public or quasi-public authority for which damages are payable. Tenant agrees to execute such Instruments or assignment as may be required by Landlord, to join with is Landlord In any petition fur the recovery of damages, if requested by Landlord, and to turn over to Landlord any such damages that may he recovered In any such proceeding. If Tenant shall fail to cxacute such Instruments us may be required by Landlord, or to undarlake such Other steps as may be requested ax herein stated, then and In any Each event, Landlord shall be deemed the duly authorized Irrevocable agent and atlurney-If-fact of Tenant to execute such Instruments and undertake much steps ax herein slated In and on behalf of the Tenant. It Is agreed and understuud, however, ' that Landlord does not reserve to Ilsrlf,und Tenant dues not assign to Landlord any damages payable for trade fixtures Installed by Tenant al Its own cost and expense which are not part of the really. to be Vold by any c urt of competent u INTERPRETATION. then much determination yshall vnut affectt&my other hpru ix Lie of thisd• Lease, all of which other provisions shall remain In full force and effect; and It Is the Intention of the parties hereto that If any provision of this Lease Is capable or two eonstruelluns, one of which would render the provision void and the other of which would render Ihe_ provision valld, then Ihe Oruvidun shall have the meaning which renders It vulid. TWENTY-NINE. MISCECLANEOUS PROVISIONS. It Is ugreed That neither Landlord nor unyune acting on Its behalf has made any statement, promise or agreement, or taken upon Itself any engagement whatever, verbally or In writing, In conflict with the terms of this Lease, or that In any way modifies, vuriesI altars, enlargers or Invalldalcs any of its pruvirluns, unit that no obligations of the Landlord shall be applied in addition to the obligations herein expressed. Within gun days after request therefor by Landlord, or In the event that It be required upon any sure, assignment or hypothecation of this Lease and/or of the Demised Premises and/or the land thereunder by Landlord, Tenant agrees to deliver In recordable form a certificate to any proposed murtgageo or )iurchuacr, or to Landlord, aerlifying(If much be the come) that this Lease Is in full force and effect and that there are no defenses or offsets thereto by Tenrnl(or staling those claimed by Tenant), and such other relevant face as may be therein requested. The title of the various Articles of this Lease are for reference and Index purposes only, and none or them shall be taken into consideration or given any effect whatever In determining the meaning or scope of the Article to which any of them apply. The use of any pronoun referring to either of the parties of this Loose shall be construed to Include any or no gender or any number. It is understood that the Term Landlord and Tenant used herein, shall be construed to mean Lundlurds and Tanunts where there Is mere than one, and necessary grammatical changes required to make any pruvisions hereof apply either Iq corporations or individuals, masculine or feminine, shall In all cases be assumed as though fully expressed. The word "Landlord" us used In this Leave means only the owner fur the lime behtg of Lundlord's interest in this Lease. In the event of any assignment of Landlord'm Interest In this Lease, the ussignur shall not longer be liable for the performance or observance of any agreements or conditions on the part or the Landlord to be perlurmed or observed. In the event the Tenant hereunder shall be u corporation, the parties executing This Lease hereby covenant and warrant that: The Tenant Is a duly qualified curporagnn and all steps have been taken prior it) the date hereof at qualify Tenant to do business in the stale wherein the Demised Premises are located; 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 taken or filed when due. In addition to the minimum and percentage rents herein provided, all other payments to be made by Tenant, either to Landlord or Merchants Association, shall be deemed to be and shall become additional rent hereunder whether or nut the same be designated as much, and shall be included In the term "rent" wherever in this Lease(nutwillistanding that the words "additional rent" are used In specific cases, but not used ht o fier cases); and shall, unless otherwise specifically provided herein, be due and payable upon demand or together with the next succeeding Installment of minimum rent, whichever shall first occur, and Landlord shall have the same remedies for failure to Puy the. some as for a non-puymenl of minimum rent. Anylhing contained In this Lease to the contrary notwithstanding. Tenant ugrew that it should look solely to the Estee and property of the Landlord In this Shopping Center for the cudectiun of any judgemenl(or other judiclul process) requiring the payment of money by Landlord In thu event of a default or breach by Landlord wbh the respect to any of the terms, covenants and conditions of this Lease to be observed and/or performed by Landlord, and no other properly or assets of Landlord shall become subject to levy, execution, attachment or other enforcement procedures for the satisfaction of Tenant's remedies. If the building is transferred or conveyed, Landlord shall be relieved pf all covenants and obligations under this Lease thereafter occurring and Tenant shall thereafter look to such transferee fur the performance and observance thereof'. THIRTY. MERCHANTS" ASSOCIATION. Tenant agrees that as Noun us Merchunt's Association is urgnlaed, controlled and operated by and among the tenants of the Shopping Center, 11 shall promptly become a member of, and during the term of this Lease and any extensions or renewals thereof, It shall abide by the regulations of and remain In good standing In such Association, as well as participate fully In Its activities and promullumd programs. Tenant agrees to pay dues to the Merchants' association In amount assessed per annum, such sum to be used solely fur advertising and promotional purposes, and to be payable upon receipt by Tenant of statements or bills being rendered therefor by the Association. Said dues shall be subject to annual adjustments approved by a majority vole of the members of the Association Increasing the same to the extent required by Increases in the costa of promotunal, public relations Lind udvertising services. Tenant agrees to advertise in any and all special Merchants' Association newspaper sccliuns or advertisements and agrees to cooperate In the Merchants' Association special sales and promotions. II is expressly agreed and understood that nothing contained In the by-laws or any other regulations, established or promulgated by the Merchants' Association shall In any way affect Tenant's obligations under this Lease. The failure of any other tenant or the owner, occupant or tenant of any department stare, variety store or supermarket II is r 16 wllhin the Shopping Center or adjoining to contribute to, participate in or be a member of the Merchants' Association shall in no wuy stifles, Terminal's obligations hereunder. Membership, contribution mild purUcipution therein being a material tabulating of the Tenant under thix Lewe. The pruvlsiuns of this Article 30 may be enforced by the Mcrchants' Assuciuliun, Ilse Landlord, or both of them, by Injunction or other appropriale equilable remedy, or by Nut action mt law or ulberwisc. THIRTY-ONE. NOTICES. Wheruver to Ihis Lembo it shall be required or permitted that uulisc a given or served by either party to this Lease to or fin lilt other, sash notice or demand dginvd enbe shall flat be deemedfirdulyem or served unless In writing, and either personally delivered or forwarded by regiYle(cd or cerliRed mall, postage prepaid, addressed its set forth on Polls: Twit herof. Nytiee Ilene period begins upon signed receipt by either party. THIRTY-TWO. I/AVE AND HOLD. The Landlord covenants that the Tetaatt, upon paying tine reins herein reserved, unit performing she covenants and agrcemenls hereof shall puaecably mild quietly have, huid and enjoy the Demised Prenniscs and all rights, cusumenls, uppuricnancox and privileges belonging or in mnywisc appertaining thurelu for the uses find purpusex set furlh herein, during Ilse full term of this Lease mad any catensiun or renewal thereof, subject nevertheless Its the terms of this Lease and to any mortgage, deed of trtut or other security Instrument to which The same is subordinated. Thu covenants and agreements cunlained in the furepuing Lcasc are binding upon the parties herulu and their respective heirs, execugors, administrators, successurx, legal represculaUves and axxlgtas. THIRTY-THREE. REMODELING. Tcnatiladerstards that the Lundlurd allay, but shall nut be obligated list elect Its construct improvements to the Shopping Caner, such us canopies, sldcwalks, parking signs, lighting, pylon signs, landscaping, shrubbery, traffic control devices, striping, and other capital impruvements in its rule discretion. In The event that Landlord xhould undertake this type of improvement to the Shopping Center, the Tenunl agrees to pay Lundlurd during Ilse term of this Least Agreement a sum which shall be fixed of an allaunl capital la live cents ($.Us) per square foul fur the Demised Promises per month, commencing on file first day of the muuUn following the completion of any or oil such Improvements. Said sums shall be due mild payable in equul muultdy inualbncufs in udvunce in the way and manner specified, but such additional payment shall nut be deemed to be a purl of line "guurmntecd minimum retail' or "percentage rental" as these terms may be used load act forth elsewhere in this Lease, nor shall such payments be deemed purl of any sums due pursuant to Paragraph Nine, Nineteen, or Twenly-Six hereof. Tensing underslunds that as a result of such improvements or renovations, If may be necessary 10 eliminate or relocate Ilse outdoor sign of Tenant. Tenant agrees that, If requested, It shall remove, relucalu andlur replace said sign al'its own cost unit expense to the location designated by Landlord upon Lundlurd's request. Lundlyrd allay request that Tenant supply and pay fur al its own expense a new exterior sign. Such new sign shall be desigued, fabricated and hnslulled in accurdmnce with criteria find specifications Its be supplied by Landlord and shall be subject to the prior written approval of Landlord as herein required. In the evenl the overall design adopted by Landlord incurpurales signs or Idcntificutiuo panels for the individual Tenant, the Tenant agrees it shall pay to Ilse Landlord its share of bush sign to be erected, based on a pro cola share thereof. Il is expressly understood and agreed by Tenant, however, that nothing in this article shall in oily manner be licensed or construed to be •an obligation of Landlord to undertake'any or all xucln work. Landlord agrees that upon its election to perform any of the work herein, it shall be performed in such a way so as not to Interfere with the conduct of the Tenant's ordinary buahness at the Demised Prcaaixcs. THIRTY-FOUR. SUBMISSION OF LEASE. The sub nlmiun of this Lease for caanainmian dues nut cunslilulc all offer to Lease, and this Lease becomes effective only upon the execution thereof' by Landlord and Tensing. Upon life execution of this Lease by the Tenant, the Landlord is granted by Tenant an option on file part of flit Landlord fur thirty (30) days to execute and complete this Lease. Said option may nut be withdrawn during said thirty day period. If Landlord shall not execute this Lease within said period and immediately thercuf1cr return a fully executed copy to Tenant, she Tenant may withdraw its offer hereunder. THIRTY-FIVE. DELIVERIES; Tenant shall load or unload lilt merchandise, supplies, fixtures, equipment i and furnilureund cause the collection of rubbish only through the rear service dour or dears of the Demised Promises. ! No deliveries of any kind shall be made ihruugh the front entrance. No delivery vehicle shall park along the curb of the Shopping Center between the hours of 10:00 a.m. and 9:30 p.m. or in any area marked "No Loading". No delivery I trucks or other vehicles servicing the Demised Promises yhmfi park or otherwise remain upon she parking facilities of the Shlipping Center after 10:00 A:i I. of each day. The•Landlurd reserver the right to further reigulale tine activities of the Tenant In regard to deliveries and servicing of the Dcmised Premixes; and Tcnatat agreex to abide bi'ruch further regulations of L mdlurd. THIRTY-SIX. RECORDING OF LEASE BY LANDLORD. Landlord, may whenever Landlord deems it necessary, record this Lease and abstracts and memoranda thereof, whether required or permitted by law, in whatever Stales or jurisdictions in which give same is recordable, at Tenant's sale cost and expense (including, but not limited to, the recording fees, taxes and all other costs and expenses of recordation), which Tenant shall pay la Landlord Immediately upon such recordation; and further, Landlord shall have such right of recordation nutwilhslanding any recordation, if any, of this Lease or any abstracts or memoranda thereof by Tenant, or any other act of Tenant. THIRTY-SEVEN. POSSESSION. If Landlord is unable to lender Teaatt possessiuu of the Demised Premises as herein provided, by reason of the holding-liver of a previous occupant or by reason of may other cause beyond the control of Landlord. Landlord shall not be liable to the Testant therefor and during the period thug Landlord is unable to give possession, all rights, remedies and obligations of both parties hereunder shall be suspenticd. Should the Commencement Dale not have uccurred in accordance, with the applicable provisions of this Lease within three (]) years Irani the dare hereof, the Lease shall be deemed Ipsu fmctu, null and void, of no force and effect 17 r r .. r. - I , SNCf10N FORTY-0Ng I NVMUNUWAL CiddidIgNATIUNs 1. DoRglUans ' For purposes of this Section party of This Lease, 'the hal owitik duflnWu11s ahan apply: A. "Environmental Release": The farm Environmental Roloull shall 'Haan We roldasled, spming, eaking, pumping, pouring; e11tltting, emptying, discharging, haJecUng, escaping, lakillis ; dlsposUng, abndunlug, discarding in dumping ter any Toxic Substance 1170111, on, Into or about the Demised Promises or the a u hpphag Center, S. "Shopping Center": The term shopping Canlal shall moan the larger promisua till Exhibit "A" and attached hereto is a part of Whncin Ulu Ueuused Premises as show,, C. "Munlelpal Wasts The 'arm Municipal waste shall have ilia meaning sea forth alalaag0me111 Act, 35 P.S. sE018.103. In Isle Pennsylvania Solid Waste D. "RanleUlagon": Activities In connecUon with she cleanup of an EnylrOnlllnlal Release, Including but not limited to sampling, analysis, dxeavadan, removes, disposal and replacement of soils, gruunid stator andlur other materials, lu accordance with the Provlsiuns of all applicable laws, ordinances and ragUINUna, now or hereafter enacted. Ris edladlon 9811111 111111131dilluall Plate shall M024A written plan to Envir nme teal R0 ease wl ich allied be prepared by an nvlrimmentai angbleer acceptable affect to Landlord. elation 111 did F. "Taxlc Substance": The term Toxic Substance ahedmeall a "h"41410US Missiles " "pullutait." or "cucuunlnallL" as such forms are slow or hereafter defined In all applicable 104eral, state, old )beat laws, ardiaances or regulations flow or bereauer enueled or amended, and stay and all other terms which are or may he used b1 ally or al applicable environmental haws flow or hereafter unacled to dallne prohibited or regulated substances. 2. Tenant shall Hill use did Danlsed Premises or any part thereof, or life ShuPPing Lefler. or oily part thercol. lur the Purpose ill treating, producing. handling, transferring, proeassing, transporting, dlspusmd, using or storing a 't'oxic Substance. 3. 't'ruant and its agents, employees, contractors. Ilcunsees and invileos Shan 11el cause ter parmn a exist, as Ulu result dI hmendonal ur umidtndonnal solicit or omission by one or more of them, as kuvirumflonlal Ielaa§e. e. Notwithstanding We ruregoing, Tenant may use Honest aneanLs of ciealing materials mul 0111CL supplies in Ulu urdieary cuursu us Tdn:nd's business hl reasonable quanUdes slid providud the some are used, Stereos ;mull dispused of in eumphance wlUl :III applicable laws, ordinances and regulations, as now or hureaner ccaced. 5. Tenant shall dnspuse, remove andlur arrange for the disposal andlur rumuval of Its Municipal Wasm by a licensed Alunlclpal Waste transporter or Municipal Waste disposal company approved by Landlord, and winch shall be uparaiud flu accurdamu wrath applicable laws, ordinances and regulations. Tenant and Its ugenw. employees, cuelCaclurs. hcensaos :uml hnvlteus shall nut place or permit line placement of any Toxic Substance In any waste receptacle leuaed in life Ucnused Promises ur the Shupping Center, or Via plumbing or sower systems of ilia Demisud 11rl:misus m• the Shopping cumer. G. It afl E ivironmmal Release Is caused by Tenant is stated In subparagraph 3 ubuve: A. Tunmit shall promptly nudly Landlord and,all any governmental agencies required by law lu be floli ell; and shall rottipUy subm disclose auschedule and detailed description ofoRem adisUOn activities which shall include inlonnautin Hs Lailuerd'lady requcst. mcludiag: (I) as plan lur Re'Hedlatiou which shall Include all courses of action as may be nowssary iu ubta'n it certification runt the CuuuuuhweaiVi of Pennsylvania, Department of Envlrunmental Resources and Vie Federal Eev'rumneiilal Prutucnun Agency, mud any oUner appropriate local agency, that the pendsed Pre11Usds andlur Stepping Cc11tmC have been reniediated in accordance wull all ;)pplieable laws, ordinances and regulations, and to Ulu satislaadml of UIISU agangnes; (d) reasonable alwly measures; (111) it plan to avoid interference w1Ul Liao operation of did Shupping Center, ur ally parl theroul, 111111 dm conduct at business Uiurein, and; (lv) a plan to restore ilia Ddmised Premisds andlur Slepping Cculer w me coudltiun existing prior to WL' knnvh'atiniuntal Release, Including Ulu replacing of soils, landscaping, regrading, r solivlog and repairing the Improvements. Tenant shall modify line Iiemedlatian Plan as requdaed by Landlord. C. Landlord may, In its sole discretion, (1) undertake all or part of UIe Remedlation, at Tenant's sole cost, ur (all) ragare that Texan take all steps necessary to promptly remedlale all or pat of ilia Environmental Release, In accordance with and Rmnediadon Plan, which shall be performed by environmenal professionals approved by Landlord. Tarrant shat, upon the request of the Landlord, deposit with Landlord 125% of the east of perforane of ilia Rumudiation Plan, as reasonably asUmatud by Landlord. Pardons of the amount deposited With Landlord may, from Wne to Use, be released by Landlord ill be applied to the Cost Of performance of ilia RemodlaUen Plan. D. Upon receipt, Tenant shall immediately nbndl to Landlord true and complete copies of any carruspoldeneu butween Tenant and any regulatory agency, concerning maters efeUlg out of or relating to an Environmental Release. In addition, Tenant shall keep Landlord fully lnformad of Its progress In complying With Its obligation under this Section Forty of this Lease. E. Landlord shall have the opportunity to parUcipata WIN Tenant in negoUnUuus with any governmental authorblus Involved In the Ramedlation, loading to the obtaining by Tenant of a certification from such goveranndntal agency Ulat Tenant has remadlaled the Eavlroameeul Relass s to the satisfacUOn of such agency. F. Tenant shaft obtain a eerd0eation from the Commonwealth of Pennsylvania Depathnnt of Environmental Resources and the Federal Environmental Protection Agency, and any appropriate local agency, certifying Vast Tenant has perfanned and saUslac'ortiy completed the RamedlAUon In accordance with all applicable laws, ordnnalcas and regulations, a copy of which shall be promptly detivnred to Landlord. 0. Tenant shall be responsible for the cost of repair or replacement of any part of Ilia Uemeod Promises or the Shopping Center, and the fixtures, equipment, personally, and lnstallatiosls thereon and Unarali, necessitated by reason of the Ramedlation. 7. Tenet shall comply with all applicable taws, ordinances and regulations of all governmental authorities, as now or hereafter enacted, and shall be solely responsible for any necessary atoratiens or renovations to the Dumised PrenUses, Including but not Ihalted to RemadlaUon, structural renovations, or cessation of activldes accessary to comply with such laws, ordinances, and fegulaUons. S. If any cerUDcadon required In Section Forty Shaft not be obtained prier to the expiration or earlier termination of this M r' . . . • Promises, Including but not limllcd to Remediotion, structural renovations, or cesssafun of activities necessary to comply with such laws, ordinances, said regulations. It. If any corllRcallun required In Section Party shall not be obtained prior to the ctpirattun or earlier tcrmlaalton of this Louse, then until such certification is obtained, Tenant shun be resputudblo for and shall pay to Landlord an amount, for each day, equal to ono-threo hundred siity-DCIh of the aggregate of the highest amount of Minimum Annual Real and Additional Real payable by Tenant in any Lease Your during the live (5) year period Immediately preceding, diminished by any rent or other revenues received by Landlord by rcuwn of she uccupuncy of the Dcmised Premises during such period. . 9. Tenant represents and warrants shut the pluns and specl0wliuns to be submiucd to and/or heretofore subodlled and approved by Landlord for the construction, decoration, Improvement and/or renovation of the demised Premises are In conformance with all applicable luws, ordinpnces and regulations of all govermuenkal authorities. Tenant shall, prior to commencement of construction, obtain all Ilcemes, permits and approvals necessary fur construction of the Demised Premises pursuunl to the plans and speclRcatluns approved by Landlord, and for the operation of the DemiscA Promises us contemplated by this Lease, Including all land development rcquiremcals. All construction worts performed by,rununt or Its contractors shall be In accordance with applicable laws, ordinances and regulations of the governmcnkal uutlmrldcs having jurisdiction thereof. , 10. Except as uthcrwise allowed or provided herein, Tenant t6ull not use any Toile Substuace an the Demised Premises or the Shopping Center, other than those substances listed below, which shall be soured In appropriate safety or protective containers and disposed of in the.fulluwing amuuhts and frequencles in accordance with all applicable laws,.urdinances and regulations (If no listing Is Included hereunder, no such use shall be pcnnBOcd or ullowcd under say dreu'tnstunces): " TOXIC SUBSTANCE USED STORAGE METHOD DISPOSAL hIETHOD AMOUNT DISPOSED EPA/DER PER MONTH GENERATOR I.D. NUMBER (if applicable) Tenant shall give prior written notice to Landlord of any prupuscd changes in the above schedule, and within thirty (30) days alter Laandlord% reccipt of such notice, Landlord okay approve or reject judo proposed change, hl Its rule discretion. 11. The covertunts, representations and warranties provided herein shall survive the cipirution or earlier lenninution of this Lease. 12. Tcnunt shall pay, defend, Indemnify, and hold harmless Landlord front and against •rny unit oil cluims, lu»es, costs, dumuges un4 Iiubililies arising from or rotating to Eavironmcalul Releases, Remudialion, or the failure of Tenant, or its agents, employees, contractors, licensees or Invitees to comply with the provisions of this Section Forty. 1 lr 1• h :. , EXHIBIT "B" STANDARD SPECIFICATIONS 1. Landlord Itespunsibllity " Enlrunce Aluminum narrow Alto with standard hardware. Wass and ghnhtg sidelights 114" clear glass tempered in doors and . Slatcfrants Aluminum framing. glass 1/4" clear I I' . In_Irrlnr Ftnlvh of •mlt 'U IIT' or 5/8" drywall loped and sanded to receive paint ur wall covering (except fur rear wail). ?l'IIIng6 •.: 10'0" high 2'a 4' suspended. FlYOL''' 4" concrete slab on grade, • Ehrtrt.•„1 hlinintum service as regaircd by state and local cude• (100 AMP). Exit signs as required by state and local code. One (1) duplca Outlet per every one hundred silly (160) square feet of leawd hour area. RE4r uatvem n,-,r (if applicable) 3'0" a 7' of 7'0" a 618" hulluw metal with luckscl, weatherstrip, ttireshuld, dour with nun-rrmuvable pins and bulls. One (1) combination light/fan flalure bathroom. One (1) drup-In 4-tube fluorescent light Uslure per every ninety (90) square feet of leased fluor area. One (1) 6-9u0un electric water heater. PLIInhinL' Restruums- One (1) water closet, fluor mounted with seal and all trim. One (1) lavatory WWI hung vitreous china with all trim. _ IIVAC Healing- Gas fired (if available) rooftop units- 40 BTUs per square feet of lensed flour arcs. Air Conditioning. Electric. 1-ton cooling per three hundred fifty (350) square feet of leased flour area. All heuting/alr conditioning ducts (insulated), diffusers, and controls. 11. Tenant Responsibility t:mergenev Lighting it required by State and/or Lucal Code Any A hllll at••i Finish not listed above 21 a . ri ; A. GENERAL T "C" SIGN CRITERIA i. TENANT Ix required lu Identify Its premixes b Signs Shull Tmeet F1 the Sign Crftcriw as Outlined hcrgin and Shull beh ph 11 shall 1ucu1 aulid inilst, atitsch usust expense. installed, a by TENANT and of its expense. Any sign which dues nut icy fuur IN Improperly ulb mgt Which shall be removed of TENANTANT'S expenso, approval shall be and/ur 21 All Signs Shull be individually lettered and inlernally Illyminuled as Outlined In ibis Exhlbl , Underwriter's Luburulurlcs' label of approval On all parts and completed diePlaY 1 Signs shall have B. SIGN CRITERIA - EXTERIOR 1, The sign Shull be lucufed un Ilse exterior facts, as delcrmined by The LESSOR, _ 2. SIR" wordage Shull be limited to the store name onlyp on a single line. 3. The axe Of logos or Insignia (whic s h ShSl1 nut exceed the average subject Ill LESSOR'S approval. height of sign letters) may be permitted, 4. The maximum isclighl of sign Icltor oscecd tl0 percent nt or of She slum s or eumpuacnts shall slut exceed 26 inches, 'I'bu Icnglb of the sign shag not frun9. The length of the sign shag be ceuturrd over the store front. 5. LESSOR Shull Provide wiring for one (Q uddidunrl sl 1207vull circuit Italy to building faclu, Cull rculls will be the responsibility of TENANT, and instullutiun of 6. A delulled description of design Standards Is attached 4rrrlu ax C-A. C, SIGN APPROYAL 1. NO sign shall be rrcNcd until LESSON. written speclficallunS and drawings for said sign are upproved in writing by 2• TENANT Shull submit to LESSOR three (J) Sets of all Sign drawings and xpccilicutiuns which shall show the locution of the sign un the buildings, The Slxr, cunslruclin malerials, rulers, script, ditachntebl Uetailx, munuical laud nyalleer, menli, bdghln oSS, in-foul lumberls uand name, address and phone number of sign mOnufactu err/Install 3. LESSOR shall return lu TENANT one act of such modifications of appro approval, .signs pluns within Bftern (15) days, with suggested D, INDEMNIFICATION BY TENANT TENANT Shull, t, hereby at Its Own risk and expense, erect said sign and maintain #! go to Indemnify LESSOR oguinsi and save LESSOR harmless [rum i an gaud, slate of repair' TENANT the erection, mo may be ice, rxLStence or removal Of Sold sign and further ugrevx to repair, ul its sine expense, an or Jansage resulting removal y damage which may be caused by the erecllun, mabilenunce, existence or rentuval of such silks Upon vacuilc, an from Premises, TENANT agrees, at its Salo expense, to remove OII signs and repair 24Y and all damage caused by such the , within thirty (]0) days of vacating premixes. 22 1 „ EXHIUIT C-A 'DESIGN STANDARDS SIGNS 1. All signs shall be comprised or Individual letters. Sign letters shall have metal rider aid back made of .W0 gaogc aluminum 0313 Dark Bronze Duranudle finish with minimum un"lliluh (ill") acrylic plastic facer, with trip cap edging to match aluminum. These letters are to be mounted directly to the front canopy with nuhrcorrusive fasteners. All attachment devices ?hull be concealed Inside the letter casing. 2. Secondary wiring and transformors %bull be housed In mctol,conduit concealed behind the canopy facia. No open , wiring Is permitted. 3, Sign Icttoro not excsuding two and three-quarter Inch (2 314") stroke shall contain not more than Iwo (2) rows, nor less than une (1) raw, of 12 mm. ncoa tubing. 4. Sign letlars not exceeding four Inch (4") stroke shall contain not more than four (4) ruwr, but not less than two (2) rows, or 12 mm. noun tubing. S. The color rendition of noun tubing shall be coordinated with the color of the translucent plastic Net or the sign letter. No exposed tubing or lumps will be permitted. 6. All 12 mm. mercury-filled neon tubing shall be controlled by self-contained U.S. approved 60 MA. II.P.F. 120rvalt lrunsrurmcrs (us many us may be required). 30 KA. tronsfurmers may be unit with orange, copper or red tubing only. 7. Tenant's sign contractor skull connect sign to wiring provided at a designated location behind exterior fucla. B. No exposed cundutl, junction boxes or raceways permitted. 9. No light IeakugF will he permitted an sides, back or front of letter. 10. Signs Shull not project beyond the front face of building facia by more than four (4) Inchc4. 11. All letters within The sign shall be une (1) color when sign h lighted. Clear, smoked or limed acrylic races which' allow fur neon to be scca will not be permitted. 23 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-03533 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BECKER SIDNEY ET AL VS. KATSAMPES ERNEST T ET AL R. Thomas Kline , Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: KATSAMPES ERNEST T but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania. to serve the within NOT & COMP FOR BREACH OF LEASE On July 9th, 1999 , this office was in receipt of the attached return from DAUPHIN County, Pennsylvania. Sheriff's Costs: So answers: ji Docketing 18.00 Out of ggCounty 9.00 pR^ rr'6 DEP hDAUPHIN CO 29;25 omas i ri $64. 3 GA ES & ASSOCIATES 07/T09/1999 Sworn and subscribed to before me this day of 19 A.D. • rrocnon y ( }? ,,3 011 ire of *AS4Prt.f f Man' Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph:(717) 255-2660 fax:(717)255.2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin BECKER SIDNEY vs • KATSAMPES ERNEST T Sheriff's Return No. 1190-T - - -1999 OTHER COUNTY NO. 99-3533 Ralph G. McAllister ChierNpuy Michael W. Rinehart Assistant Chief Deputy I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for KATSAMPES ERNEST T the DEFENDANT named in the within NOTICE & COMPLAINT IN CIVIL ACTION and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, June 25, 1999 TALKED TO KAREN PETERSON AND SHE INFORMED US THAT DEFT SOLD THEM THE HOUSE 20 DAYS AGO, NO FORWARDING ADDRESS. Sworn and subscribed to f JUNE, 1999 before me this 25TH P0 j 0" 6. PROTHONOTARY So Answers, ,eaAlc- Sheriff of Dauphin County, Pa. By Deputy Sheriff Sheriff's costs: $52.75 PD 06/15/1999 RCPT NO 124958 <u [.etc ;,...vuc, v: "V111iutvY: It z, 10, Sidney Becker, et. al. VS. Ernest T. Katsampes, et. al. Serve- Ernest T. Katsampes No 99-3533 Civil 19 Now, 6/10/99 19_, I SHERIFF OF CUMBERLAND COUNTY, PA do hereby deputize the Sheriff of nauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, Pa. Affidavit of Service Now. by handing to attested copy of the original the contents thereof. So answers, Sheriff of COSTS Sworn and subscribed before me this day of _ SERVICE S 19 MILEAGE AFFIDAVIT 19 , a[ o'clock M, served the County, Pa. a true and and made known to S i•. [t i $ is i I? 1:?i1rL.; ., SIDNEY BECKER, JUDITH BECKER and WILMA BECKER SHAPIRO trading as LESTER ASSOCIATES, a general partnership, Plaintiffs, vs. ERNEST T. KATSAMPES and GEORGE T. KATSAMPES, both individually and as a partnership trading as T/JIS FLAME-BROILER RESTAURANT and also trading as TUCSON'S SOUTHWESTERN GRILL, Defendants. . IN THE COURT OF COMMON PLEAS . CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW N0. q1-3333 CIVIL TERM 1999 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may-be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Telephone: 717-249-3166 TRUE COPY FROM RECORD in Testimony whereof. I hare unto set mY hana and the seal of said Co at Carliste, Pa. Thisay _ o 1? 22_ Prothonotary n i. I . SIDNEY BECKER, JUDITH BECRER and WILMA BECKER SHAPIRO trading as LESTER ASSOCIATES, a general partnership, Plaintiffs, Vs. ERNEST T. KATSAMPES and GEORGE T. KATSAMPES, both individually and as a partnership trading as T/JIS FLAME-BROILER RESTAURANT and also trading as TUCSON'S SOUTHWESTERN GRILL, Defendants. 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW N0. 59- 3 EI-3 CIVIL TERM 1999 COMPLAINT FOR BREACH OF LEASE AGREEMENT FOR COMMERCIAL REAL PROPERTY AND NOW, come Sidney Becker, Judith Becker and Wilma Becker Shapiro (hereinafter "Plaintiffs"), by and through their counsel, Gates & Associates, P.C., and make the following complaint: 1. Plaintiffs are adult individuals and the current partners in Lester Associates, a general partnership which is registered as a fictitious name with the Pennsylvania Department of State, Corporation Bureau. 2. Lester Associates has its principal office at 111 Presidential Boulevard, Suite 140, Bala Cynwyd, Montgomery County, Pennsylvania 19004-1086. 3. Lester Associates also does business as Gateway Square Associates, which is registered as a fictitious name with the Pennsylvania Department of State, Corporation Bureau. M, A 4. BY way of a deed dated August 19, 1992, and recorded October 23, 1992, in the Cumberland County Recorder of Deeds Office in Deed Book Y-35, Page 442, Plaintiff took title to a certain commercial real property (hereinafter "the Shopping Center") located in Hampden Township, Cumberland County, Pennsylvania. 5. By a Decree of this Court dated October 7, 1996, Plaintiffs title to the Shopping Center was affirmed. 6. Ernest T. Katsampes and George T. Katsampes (hereinafter "Defendants") are adult individuals believed to be residing, respectively, at 585 Lovell Court, Hummelstown, Dauphin County, Pennsylvania 17036, and 34 Carriage Hill Lane, Laguna Hills, Orange County, California 92653. 7• Defendants do business as a partnership under the fictitious names T/JIs Flame-Broiler Restaurant and Tucson's Southwestern Grill. 8. By way of a Lease Agreement dated November 3, 1997, Defendants rented a 3,600 square foot unit (hereinafter referred to as "the Premises") in the Shopping center from Plaintiffs. A copy of the Lease Agreement is attached hereto as Exhibit "A". 9. Defendants took possession of the Premises on or about December 1, 1997, and they have remained in possession of the Premises through the present. 2 10. Under the Lease Agreement, Defendants are obligated to pay Plaintiffs the following items which are due on the first day of every month: a. Rent: $3,750.00 b. Common Area Maintenance Charges: $ 136.00 C. Insurance Charge: $ 21.00 d. Pro Rata Tax Share: $ 155.00 Total: $4.062.00 11. Under the Lease Agreement, Defendants are also obligated to pay the sewer charges for the Premises, which are currently payable in $70.00 quarterly installments. 12. Under the Lease Agreement, Plaintiffs are entitled to collect from Defendants a late charge equal to 1.5% per month of any overdue payments. 13. Under the Lease Agreement, Defendants are obligated to pay all expenses, including but not limited to attorney fees, court costs, filing costs and service costs, which Plaintiffs incur in enforcing compliance with the Lease Agreement. COUNT I• ACTION FOR MONEY DAMAGES 14. The facts averred in Paragraphs 1 through 13, above, are incorporated herein by reference. 15. The Lease Agreement provides that a default for five (5) days or more in the payment of any sum due thereunder shall constitute a breach thereof. 3 f . 16. Defendants are currently in breach of the Lease Agreement by reason of the following payments which are more than five (5) days overdue: a. Rent: $23,626.00 b. Common Area Maintenance Charges: $ 680.00 C. Insurance Charge: $ 105.00 d. Pro Rata Tax Share: $ 775.00 e. Sewer Charge: $ 140.00 Total: 5,326.00 17. The Lease Agreement provides that, upon a breach by Defendants, Plaintiffs may declare the agreement terminated without notice to Defendants and may recover from Defendants (i) all sums currently due under the agreement, (ii) all rents which would subsequently accrue during the remaining term of the agreement and (iii) all expenses incurred by Plaintiffs in maintaining, repairing and reletting the Premises. 18. Plaintiffs hereby exercise their right to terminate the Lease Agreement as aforesaid. 19. The Lease Agreement provides for an initial ten (10) year term ending on March 31, 2008. 20. The monthly rent payment due under the Lease Agreement is set to increase to $4,050.00 beginning on June 1, 2003, and continuing through the remaining term of the agreement. 21. By reason of the aforesaid breach, a total of $411,150.00 in additional rent is due from Defendants to Plaintiffs for the balance of the Lease Agreement from July 1, 1999, through March 31, 2008. 4 WHEREFORE, Plaintiffs respectfully request that the Court enter a judgment in favor of Plaintiffs and against Defendants jointly and severally for $436,476.00 together with costs, attorney fees and such late charges and other expenses recoverable under the Lease Agreement. COUNT II: ACTION IN EJECTMENT 22. The facts averred in Paragraphs 1 through 21, above, are incorporated herein by reference. 23. The Lease Agreement provides that, upon a breach by Defendants, Plaintiffs may declare the agreement terminated without notice to Defendants and may reenter the Premises and take possession thereof without prejudice to such other rights and remedies as Plaintiffs may have under the agreement or applicable law. 24. Defendants remain in possession of the Premises. 25. By reason of Defendants' breach described hereinabove, Plaintiffs hereby exercise their right to possession of the Premises. 5 WHEREFORE, Plaintiffs respectfully request that the Court enter a judgment in ejectment awarding them immediate possession of the Premises together with costs, attorney fees and such other relief as the Court deems appropriate. Respectfully submitted, GATES & ASSOCIATES, P.C. BY: d Mark E, lbru r, Esquire Supreme Court I.D. #66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) DATED: June 7, 1999 6 EXHIBIT °A" JUN-04-99 FRI 11:29 LQWELL R GATES PC FAX NO, 7177319627 P,0_ 9 VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in preparation of the lawsuit. The language of the document is Lhat of my counsel and is not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct- to the best of my knowledge, information and belief. To the extent that the content of the document is that of my counsel, I have relied upon my counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa.C.S. 54904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. LESTER ASSOCIATES, a general partnership i??'y- BY: Sidney Becker, General Partner Dated 46/ , 1999 GATEWAY SQUARE. SHOPPING CENTER GATEWAY SQUARE ASSOCIATES LANDLORD AND Lease _• T/J'S FLAME-AROTLER RESTAURANT., TENANT i d! )roi I ,¦ 1 LEASE AG)2ELmENT THIS LEASE dated this 3rd day of NOV. , belweeU G4teway Square Associates 197 having an address al =ITI? IQ_?I11 PR ID N7 IAl Ill VI) UAI A f \ N ,a 1911114 ("Landlord") and Oanrne and Ernest Katsampes having an address 111 585 Lovell Court ("'I'cllatll„) liummelstown, PA 17036 Certain Fundamental Lease Provisions are presented in this Section and represunt the agreement of lite parties borulu, subject 10 further, definition and cluburatiuil in the respective referred Sections elsewhere in ibis Lcuse; Shopping Center; Located )u the Catewnv sao,r, Shopping Cculcr at Mechanirsb Lrg. PA Domised Promises; Cuulaiuing approximately a ann square feel with upproximale dimensions of 601• x _§D. as shuwu as Store NA101-10 mild oulhned in red on Exhibit "A" milached hereto. PerllWlcd Use; nnel•a"r>,nt under the style and trade naille ill'', 'I o r, a- " and for no other purpose. (Sec Paragraph 'twenty) Lease Start Date Rout Contnleacenlonl Dale all Ina ,Lease Termination Dale 3/U/na ' Minimum Annual Rentinitia lly Wi n00.00 (See Paragraph Two) Monthly Real Paywents ini tially a • 750.00, (See 1'arugrapb Two; Initial Common Area Charges I a6 00 (Sec Paragraph Mae) Initial Insurance Charge ,; no Initial Tax Share 1-5-9-00 (See Paragraph 'I•wenty Six) Initial Monthly Renliltance 4.06 00 Percentage Real Factor 4 (See Paragraph Nineteen) Term 10 (Sec Paragraph One) Security Deposit 1. 75n n0 (Sea Paragraph Twentyl'ive) Options 2/5 Year See Pace a'hreu References appearing in the Fundawental Lease Provisions are to designate souse of the other places in this Lease where additional provisions applicable to the particular Fundailleiltul Lease Provisions appear. Each reference in this Lease to any of the Fundalucutal Lease Provisions oil pages I , 2 and 3 shall be construed to incorporate all of the terms provided for under such provisions,und such provisions shall be read il, cunjuu:li :u Irilb all other provisions of this Lease applicable tberclu. If lucre is any cuolliel hatwcell ugly of the Fundamental Lease Provisions set Furth on Pages 1 ,2 mild 3 mild uny other provisions of this Lease, the lulfer shall control. Pile listing oil page 1 of Illunclury charges payable by Wilmot shall not be construed at he ;In exhauslive list of all monetary amounts payable by 'I'cnunt under this Lease. Rent For The Demised Premises Is As Follows: P.02 Year 1-5 45,000.00 per annum payable at 3,750.00 per month 6-10 48,800,00 per annum payable at 4,050.00 per month Rent For The Demised Premises For The Option Period Is As Follows: Year 11-15 50,400.00 per annum payable at 4,200.00 per month 18-20 52,200.00 per annum payable at 4,350.00 per month Additional Provisions: 1. Tenant has an exclusive on type of Restaurant featuring flame broiled foods. 2. Tenant has the right of early termination with a settlement of 8 months rent. 3. Tenant shall pay his pro-rata share of CAM upon taking possession of the premises. 4: Landlord hereby grants Tenant permission to place temporary signage along the main road and on the exterior of Tenant premises for the first 60 days that Tenant is open for business.. Tenant shall be responsible for permits for this signage. 5. If Tenant Is not in default the security deposit shall be applied to the 24th month's rent. 6. Tenant shall only be obligated to join a merchants association so long as all other small stores are obligated to join, 7. The cost of recording this Lease'by Landlord shall be borne by Landlord. 8. Tenant shall have the right to sign 2 sides of the building with Landlord's consent not to be unreasonably withheld or delayed, and subject to Township approval. 9. This Lease is contingent upon Tenant securing all licenses and/or permits to Tenant's sole satisfaction. Landlord and Tenant baving the following notice addresses on the date of this Lease: I li LANDLORD `II p! SUITE 140 111 PRESIDENTIAL ULD Copy to: Phone Number: 610-6d8-9820' BAIAA CYNWYD PA 19004 I rl, f f t i? IENA M I Copy T/J',s Flame-Broiler Restaurant lo. Phone Number: 585 Lovell Court Hummelatown, PA 17036 This Lease Agreement consists marked exhibit "A" of paragraphs, a plan of the Shopping , Store Construction SpeciRcations marked Exhibit "B", Sign Criteria marked Exhibit "C", a set of Tenant Sign Standards marked Exhibit "C-A", a!I of which are incorporated herein and by reference made a part hereof as if set forth at length; all of which are attached hereto. IN WITNESS WHEREOF, this Lease has been duly executed by the parties hereto, Intending to be IegaUy bound thereby, under seal as of the date and year first written above. r 1S GATEWAY SOU E ASSOCIATES L-3o 97 T/ 'S FLAME-BROILER RESTAURANT 0?oMGo T, /r ? /Dezs Witnesseth: 4 1Z--30-a-) VSASaw. f es l t' ! I f. i i. R The landlord dues hereby lease and demise to the Tenant, uud the l'unmti dues hereby accept and lease from the Landlord, upun the terms, covenants, condhiuns, and limitations hereinafter set forth, ilia- Demised Premises as set forth on Page One air this Lease Agreement. For (Ilse use and occupancy of said Dehnised Prelnlwi during she term of this Lease, Tenant Shull pay to Landlord a guurunlced minimum rental In the amulauls apceilied tin Pages One and 'I'wm hereof; ? proporliunulc shire of the cipenses of operating the common areas of and a prupurionutm share of the real estate lases from time to time imposed aguhul the Shopping Cenler,,and such other charges as may be required Its be puld by Tenant hereunder, all as hereinafter more particularly set forth. The parties heruto,intending to be legally bound hereby, further covenant with each other as follows: ONE. COMMENCEMENT DATE. The term shall 'commcnce on the cipiratiou ail' 30 days ::live ndlice its Tenunt that the Demised Premises urc ready fur occupancy by Tenant, or the dale when Tenant co nmcoces busiocss uperaliu ix, whichever 1? suuner(hsreinaflcr called "Commencement Dole"), and Ilse tens shall cspire ion the last day of the calendar month In which there Shull have elapsed the time set forth on Page One hereof ax the Turns. If the Commccimucnl Dote is nut on lite first day of it calendar month, rent fur Ise period between Cummrnecmntl Date and she first day of the following month shall be upportiuned at the annual rate herciuubuve provided (bawd tin a Sod day annual busix)und shall be due and payable on the Cu menFcinmi Dale: As soon as, Cununcucemcttl date has been determined, memuranda in the form appended hereto ani?gtarked Exhibit "CI", Shull be signed by Landlord bird Tenant confirming Ilse mutters therein set forth. III ;; , , AI I Two. PAYMENT OF LEASE. All guaranteed minimum rents, and except as may be herein uthefwise provided, oil percentage rents, addillun+l rents and any other Icuw charges due hereunder skull be payable in capital assembly inxlullmems, In udvuncc without scl-uff or deduction of any kind, upon she first day of each calendar munth of the tern, at the arrive of the Lmndlord,ur at such other place us the Landlord may front time its time designate, all withuul relief [runt vuluutiun and uppralsement laws. The parties covenant mid agree Ihul any payment or rent ur additional runt made hereunder may, ut the option of Ihu Lundlard,bc ucceplcd and uppilcd lu payment tin account of the rent air uddillonul rent longest overdue under this Lease, nutwithblanding any statenncnt to the contrary cadursed on at accumpunylug each payment. Should any payment or inslalhnedl of such runt or additional rent out be made tin ilia date when it skull have became due and payable, Landlord skull be entitled to collect u laic charge thereon equal to mile uml one-half percent (I.5%) per munih,or the highest login rate permitted by law, or a (ruction thcreuf of the unsount air a counts uverdue,the same to be deemed addition•+1 rent hereunder. Except us herein olherwhe specifically provided, It is the intent of the parties that lite rent, additional rents and tither expenses which may become due and puyuble by Tenant hereunder shall be absolutely net of any and kill charges, ussessnients, Impushiuns, culls, expenses or deductions of every Lind or nature applicable to the Uemised Premises, or the use and occupancy thereof, line Tenant to be solely responsible Ilserefor mid also Landlord lu have absolutely no liability air respunsibiMy whatever in connection therewith. THREE. REPAIRS, ORDINANCES, AND VIOLATIONS. 'rhe'resiant cove'nanh that to waste air damage shall be committed within, upon or to the Demised Premises; that the same shall be used fur only the purpose herehmbuve staled,sholl nut be used fur any unlawful purpose and trial no violations of law or urlimmice or duly constituted aulhurily shall be committed lhercun. Throughout the term hereof Tenant shall lake good cure of the dcmiwd Prcmises,including withoul limitations, the electrical and plumbing systctns front their points of entry therein; the hculrhg,vctuilaing and air conditioning system and the electrical system servicing Uumiwd Premises uud any and all duties, mulding, tern, window frames, dour fortunes, erasure devises, dour hardware, dour Ininges and/or windows us well as fixtures mid appurtenances and all alterations,. addilions and Improvements to ammo; and Tenunl shall make oil •repuirs and repfacemcuts lu and about the same, in part and In their entirely, as may be necessary to preserve Ihcnt in good order and condition. All repairs and replacements shall be equal in quality to the original work and Tenant shall prumplly pay the expense of such rcprirs and reptucemenls, sut'l'er no waste or injury to Demised Pecmres, give prompt notice to the Lundlurd of any d•+mage lhat may uccur,eiecule and comply with all laws, rules, orders, ordinances and regulations at any link issued or in force, applicable to the Demised Premises or In lite'fcnant's lase and occupancy Ihercuf, of The Landlord and/or the Municipal,City Cuuuly,Stmtc,Federal Governments and of each and every department, bureau and official thereof, and of the Board of Fire Underwriters having jurisdiction thereof. Landlord will keep in repair the structural elements, cxteriur, ruuf and cunuuun urcas of the Shopping Center, provided the Tenant shall give Landlord written notice of the necessity rue any such repairs thcrctu, -unit provided further that the damage to the same shall nut have been caused by the negligence or careless act or Tenant, in which event Tenant shall be responsible Ihurefur. Landlord's ubbgulius, with rasped to repairs to hhe Demised Premises shell be only us exprussly set forthdn this Paragraph Three, and tail costs Incurred in connection thcreg)lh shall be Included as purl of the expenses Incurred by Landlord udder and pursuant IU use pruvislum of Paragraph Nine hercur. As the expiration of the term Tenant shall peacefully xurrender the Demised Premises lu the Landlord In (loud order and repair, and bruum clean. , FOUR. INCREASED FIRE INSURANOE RATES. Tenant shall not du, suffer to be dune, or keep, or suffer to be kept anything in, upon or about the Demised Premises or like ally action which would %old, make evuiduble, affect the enforceability of or Increase Ilae premium for any of Landlord's Insurance policies Insurin +g+insl loss or damage by lire or other hazards,inciuding but not limited to public liability, or which will prevent Landlord [rum procuring such policies In companies uccepluble to Landlord. If Tenant allows the demised premisa-s to remain vacant or anything be done, umitted to be dune or suffered to be dune by Tenant, or kept or suffered by Tema to be kcpl In, upon or about the Dcmiscd Premises shut shall cause the rule of fire or other insurance muimained thereon by the Landlord In companies acceptable to Landlord to be increased beyond Ihr minimum rate from lime to time applicable to the Demised Premises when fully occupied by tenant or to Its was fur the purpue permitted under Utt$ (case or to she use of such other property of Tenant as may be kept or maintained dnercin, Tenant will pay'ass an udditionul rent hereunder the amount of such increase prumplly upon Landlord's demand. Should any use or vacating of line Demised Premises by Tenant uperale in any manner to void or make vutdablc ally wen Insurance policy 5 ,a1. or otherwise affect its anfurceubllily by Landlord (hcn Landlord shall have the righgia aJtOtiun to all other remedies available go Lundlurd)tu lerminuic this Lease upon thirly(30) days wrhlen notice to Tenant. FIVE. ASSIGNMENT OR SUBLETTING. Tenting expressly cuvunangs ilia: It will nut usbigni,morigugc or encumber this Lease nor under-Icl or sublet or suffer or permit the Dcmisud Premises or any purl thereof, whether by license, concussion, or otherwise, to be used by others withuul ilia prior written consent of Landlord in such instance. In ilia event the Tenant hereunder shut] be a corporation, any transfer, sale, pledge, or other dibpusitlun of Ilia eurpurula stuck or voting su¢urifies of the Tenant shall be deemed an assignmum of this Least and therefore prohibited without Ilia express written consent of Landlord. At all times during the term of this Lambe and any, renewal thereof, It Is hereby agreed that all persons signing an behalf of the Tenant curpurudon shall be uffiuen unit illreciurk of sold Tenunt curpuruliun and they will collectively own al ]east 75% or more of all slucks,equtdus,and sucut'tles of bald Tenant. If this Lease be assigned or If the Demised Premises or any part thereof be sublet under-let or occupied by anyone other than Tenant without the express written consent or Landlord first had and obtained, Lundlurd may cullccl real (ruin the assignee, undcrtenanl, user or uceupual and apply ilia um amount collected to oil rant herein reserved, but no such assignment, underlelling, occupancy or culleciiun shall be daunted u waiver of this cuvununl or the •ueceptunee of the assignee, underlenanl, user or uceupunl us Tenting, or a waiver or release of the performance by 'mint's part to be hereto observed and performed. I In the event the Lundlord's written cunsanl to any asiigmncnl or bublatting it granted hcrcuuder, the Tcitual shall, nevrriltaless, ramaln liable to perform all covenants and conditions by the gallant to be uWarved undlor performed hereunder, and to guurantce such performance by the abslgnec or sub-tunan4 unit such eonsetn Shull in no clung be ducmed cuntlnuing for the purpose of any subsequent usslgnmcnis and/or suWcuing, ruch sal' which shall require the separate written consent of Landlord first had and obtained I'ur which Landlord may, no hs option, require the paymum of an administrative fee of $250.00 In such instance. SIX, BANKRUPTCY OR INSOLVENCY. A. Lease Rejacilun In Bankruptcy. In the event the Tenant shall become u Debtor under Chapter 7 of the Bankruptcy Cute, sand the Trustee or Tenant shall elect to assume this Lease fur the purpose of assigning the same or otherwise, such clecliun and ussignmem may be made only if all terms and conditions of Paragraph Six hereof are satiblicd. If such Trublce shall full to elect to assume tills Louse within sixty (60) Jays urger the filing of the Petition, this Lease shall be deemed to have been rejected, unless for cause shown, the Bankruptcy Court shall, prior in uxpiragiun of said Ably (60) days, have extended the time for assumption of this Lease. Landlord shall be thereupon immcdiululy entitled to possession of the Demised Premises without further obligation to Tcnanl or ilia Trustee; and this Louse shall be cancelled, but Landlord's right to be compausulad for damugcs in such Iiquidmion proceeding shall survive. B. Cundiduns fur Anunnpliun of Lease. 1. In Ihr event that a Petition for reorganization or adjubinton u( debts Is filed concurning Tenual under Chaplet I I or 13 or ilia Bankruptcy Code, or a pruccedihhg is flied under Chapter 7 of the Bankrupley Cute and is converted to Chapter I I or 13, ilia Trustee or Tenant, as Debtor and Ucbtur-In-Pusx»iun, must elect to umumc this Lease within sixty (60) days groin the dam ul' filing of dtc Petition under Chapter 11 or 13, or the Tcublue or Debtor •and Ucbtur-ht- Process shall be dunned to hove rejected this Luabc, unless for cause shown, the Bankruptcy Court Shull have prior to ilia expiration of said sixty(60) days have extended the lime for assumption of tills Lcubu. No election by ilia Trustee or Debtor and Deblur-In-Posstasiun to abiunnc this Louse, whether under Chapter 7, 11, or 13, uhull be effective unlebi each of ilia following conditions, which Landlord and Tanana acknowledge ore cummcrciully reasonable in the context of a bankruptcy proceeding or Tenant, have been satisfied, and Landlord has so acknowledged in writing: (•a) The Trustee or Ilia Debtor and Dcblur-In-Possession has cured, or has provided Landlord adequate assurance (as dclincd below) that: (1) Within Ica (10) days [rum the date of such assumption, the Trublee will cure all monetary defaults under tills Least'{ and (B) Within thirty (30) days (cum the date of such,assumpilun, the Trustee "Ul cure all nun- moaelury defaults under this Lease.- (b) The Trustee or the Debtor and Debtor-In-Pussessiun has compensated, or has provided to Landlord adequate assurance (us defined below) Ihul within (10) days from the dale of assumption Landlord will be compensated fur any pceuniury loss incurred by Landlord arising from the default of Tenant, Ilia Trustee, or the Debtor and Debtor-In-Possession as recited in Landlord's written statement of peculinary loss sent to the Trustee or Debtor and Dcblur-ln- Pussessiun. (c) Thu Trustee or the Debtor and Dcblur-In-Pwsessiun has provided Landlord Willi udcyuula assurance of the future perfurmance of each of Tenant's, the Trustcc or Debtor and Dcblur•In-Pusscsbiun's ubligmlons under this Lcasc, provided however, that: (1) The Trustee or Debtor and Debtor-In-Posacsalua shall also dcpusil with the Landlord, as security for the Jointly payment, an annuunt equal to two (2) mundns rcni (as adjusled charges pursuant to Six B(1)(c)(Iii)bcluw) and other monetary charges accruing under this Lease In uddilion to any prevluubly deposlled security under parugrapNlTwenly-five r ?r .J hereof; and (it) If nut otherwise requlred by Ihu Terms of this Lease, the Trustee or Deblur and Debtor- In-Possession shall also pay in udvance on the dale minimum rent is payable imih or Tamil's annual obligations under this Lease fur added charges, (iii) From and after the date of ussumptiun of this Lcasu, the Trustcc or Debtor and Dcbtur-In-Possession of the minimum rent otherwisu payable hereunder,plus the uvcrage umuum of the annual percentage paid by Tenant to Landlord within file live (S). your period prior to the date of Tcnanl's petition under the Bankruptcy Code,'which amount shall be paid in advance in equal monthly Inslullmenis an the date minimum rent is - playable. (Iv) "'Ile obligations Impwcd upun lite Truslec ur Debtor and Dcbtur-lo-Puucsslon shuit continue with respect to Tenunl or any assignee of mill Lease after completion of bankrupcey proceedings.' (d) The ussumptiun of this Lease will nut: (1) Breach any provision In any other Ieasa, mortgage, financing ugrcenneug or other agreement by which Landlord Is bound relating to the Shopping Cutter; Or (ii) Disrupt lha Ic'lunl balance, 4110.1 enanl mix or the ShWping Ccuacr or soy ufhur umempl by Landlord to provide a specific lenmtt balance (or lanai mix) of retail mares in Shopping Center which would be must beneficial to all of Ihu imunta fn the Shopping Center and would enhance the image, reputation, and profitability of the Shopping Center, 2. For the purpose of this Section Six B, Landlord and Tenant acknowledge chat, lu the cunlcn of a b•nkruptcy proceeding of Tanking, at a minimum "adequate assurance" shall 'lieu" that the Trustee or Debtor and Dublor-In-Possession bus and will continue to have sufficient unencumbered assets after the payment of all secured obligaiuns unit administrative cxpcnses to assure Landlord that the Trustee or Debtor and Dcbtur-In-Pusscsxfun will have sul'lident funds to fullill the obligations of Tenant under this Leusc, and to keep the Dumised Premises sluckcd with merchandise and properly stuffed with sufficient employees kin conduct a fully operational, actively prnnuicd business on the Dendsud Premises. C. Landlord's Right co Terminate. In line event chat tills L:kkxc Is abstained by a Trustee appoinled fur Tenung or by 'felling as Dcbtur and Dcblar-In- Po»essiou under line pruvisiuus of Section Six D hereof and Ihereal'ler'I'eaunl is liquiduicd or files a subwqucat Pwiliun for rcurganuullun or adjustments or dcbti under Chupler I I or I] of the Bankruptcy Code, then, unit fn either of such events, Landlord may, at Its uption, terminate this Lease and all rights u(Tcn:mt hereunder, by giving 'ranking written notice of its election to ski terminate, within thirty (]d) days after line occurrence of such events. For the purpose of this Section Six C, Landlord and Tarrant acknowledge chat, fit lite wntcxl of bankruptcy proceedings of Tenant, all a minimum " adequate assurance of future performance" skull mean that each of the following conditions have been satisfied, and Landlord has all ocknowledgcd in writing: L The-asaignce has submitted a current certified financial statement prepared by a Certified Public Accountant which shows a act worth and. working capital in the amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease; 2. The assignee has submitted In writing evidence, satisfactory to Landlord, of sobstauial retailing experience in shopping center's of comparable size to the Shopping Center and in the sale of merchandise and services permitted under this Lease; unit ]. Thu Landlord has obtained oil consents or waivers from any third party required under any lease, mortgage, financial arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment. 0. Use and Occupancy in Bankruptcy. When, pursuant to the Bankruptcy Code, the Trustee or Debtor mad Dubgor•In-Puasessiun shall be obligated to pay reasonable use and occupancy charged for the use of Demised Premises or any portion thereof, such charges shall nal'be less than the minimum-rent as defined In this Lease and other namegary obligations of Tenaal for added charges. -' E. State Law. Neither Tcaunt's Interest In this Lease, nor any lesser Interest of Tenant herein, nor may Esulic of Tenant hereby created, shall pass to any trustee, recciver, assignee fur the benefit of creditors, or may other person or entity, or by operation. of law or otherwise under the laws of any state having jurisdiction or gilt person or properly of Tenant (hereinafter referred to as the "stale law") unless the Landlord shall consent to such transfer In writing, No acceptance by Landlord of rang or any other puymcnls from any such cruslce, receiver, assignee, parson or other entity shall be deemed to be waived, nor ?ball it waive the aced to obtain Landlord's right to terminate this Lease fur any transfer of Tenant's Interest under this Lease without such consent. F. Thu provisions of this Section Six sball at the election of the Landlord also apply to and bind any Guarantor of this Lease. SEVEN. LITIGATION. In the event the Landlord or Its agents, without fault on Its or their part, become involved, through or on account of the terms of this Lease, or through or an account of the occupancy of the Demised Premises by the Tenant, or the conduct of Tenant's business upon said Demised Premises, In any controversy or litigation, the Tenant shall upon notice from Landlord or Its agtntv, hnmcdluicly take all neccssury steps to remove said 7 Landlord's eunnection with or Ilutillity under such controversy or Ihigulion. Purticulurly if such controversy or Iltigloion throws any cluud or encumbrance upon the title of bald Landlord in and to the Demised Prendses or the Shopping Center provided nevertheless that If the Tenant believer it hus rood and valid defense, or claim, which tenant. desires to assert and mulatima throughout such controversy, or Iillgatiua, the Tenant shall have the. right to do so provided it first executes and delivers to llte Lundlord an indemnifying bond with surely satisfactory to Landlord, and dischurges uny and loll final judgements, liens, costs, damages, cipeuscs load ubligatimn of Lattdlurd whulsucvcr, in, or urlsing oul of the controversy or litigation Involving the Lundlord or lit ugentu, Including all costs, cipenses and attorney's fees Iniurred by Landlord or Its agents protecting their Interests or defending thumsclves in such cuntruversy or litigation. EIGHT. UTILITIES. Tenant shall be solely responsible fur and Shull promplly pay upon the bills Ming rcndercd therefor by the supplier thercuf, and before the same become delinquent, wry wad all separate metered or measured (or lit the case of a muster meter, prorated) charges for the use and cunsumpliun by the tenants of the Shopping Center of heat, air conditioning, sewer, wuler, gas, electricity, and any other utility service utllizcd in tine me and occupancy of the Demised Premises by the Tenonl. The Tenant shall use reasunuble diligeucc of the conservation of these utilities, and ugrees that It will nut without the prior written upproval of Lundlurd, cause or permit the use or consumption thereof to occur during any periods that the Shopping Censer is not open for busiuuss to the general public, nor will Tenant Install any equipment which will escepd or overload the capacity of any utility ILcilides, It being understood that should any equipment installed by Tenant requlre udditlunal utility fucililles, the sung sllall be Inslullud ul Tuount's expense conditioned upon the prior written uppruvul thereof by Lundlurd. 'NINE. COMMON AREAS. In addition to the Demised Premixes, she Landlord shall nuke uvuilable to the Tenant such Common arras within or adjacent to the building of which the Dcmiscd Premises is a part u nd elsewhere upon the Shopping Center, together with any Cuauaon Areas provided by means of cross or rcciproeal gasetnent ugrcemenls (herein "REA") as Landlord shall, from time to lime, deem to be appropriate fur the Shopping Center, and- Landlord skull operate and mWntain such Cummun Arcus fur their Intended purposes, subject lot all limes to, and reserving unto the Landlord the right, ciere'lsable lit Its sulc discretion, but nut more I'rcquetuly than one (1) day in each calendur year, to close off the Common Areas unit deny access Ihcreno in order to prevent a public dediculion thereof by opcrutiu t of law and to ussurc that the same will remain prlvutu property.'renant shall have nonexclusive riWil during the term to use (fur their intended purposes) the Cummun Areus fur Ilsclf, Its employees, agents, enstunIC4, and Invitees, iubjcci however, to the pruvisiuns of this Paragraph Nine. Landlord shall have the right, at any time and from time to time, Its chunge the size undlor location Land/ur elevation andlur nalure or the Continent Areus, or any part thereof, including, without limitation, the right to locuc thereon Musks uudlor other structures lot any type. All Common Areas Shull be subject to the exclusive cunlrul and management of Luidlord, usul Lundlurd shall have the right, at any time unit from lime to time, to establish, modify, umcnd load cufurce unitnrm rules and rCgulallons with respect to the Common Areas und'use thereof. Tenunt ugrecs to abide by and its conform to such rules und regulmious upon notice thereof, to cause Its business agents, invitees, licensees, empiuyces and agents, so to abide and conform. Landlord reserves the right, from time to lime, to ulllize purlios of The Cuounun Areus fur such uctivilius as its the judgumum of Landlord will promote the business uctivilies of thu Shopping Center to tike general public. The Landlord shall muinlain or cause to be malaimned The said Common Areus in u scut, clean, orderly and operable condition, properly lightened, heated, load air conditioned (if upprupriatc), but all Cipgamei in cuuneclion therewith shall be charged and prorated in the munner hercinuftcr set forth. 11 is undenlood Land agreed that the term in the inmedlulcly preceding sentence, shall be construed to include but not be limited to, ull %unis nexpensesn • expended or incurred by Landlord in connection with the Shopping Area and/or the Common Areas fur all general maintenance and repa;rs, (including those made In performance of Landlord's obligation under •rnd pursuant to Purugraph Three lnureol), resurfacing, painting, striping, cleaning, sweeping, and providing juniturial service munagcment services maintenance unit repair of sidewalk, curbs, Shopping Center signs, sprinkler systems, planting and lundxaping; providing lighting and other utilities; direetiunal signs and other markers and bumpers; the operation, maintenance and repair of any fire protection (including sprinkler) Symms, storm drainuge systems and other utility systems; the cull of all personnel to implement such services including, if Landlord deems necessary, the cost of providing security guard servicc; any and all personal property tuxes and asseasutcnts un the improvements and land cuniprihing said Common Areas, us well as any governmental imposition or surcharge imputed upon Landlord or ussesscd against the Common Areus or any portion thereof, the fees, costs, or expenses, if wry, required fur the muhatenunce and preservation of any rights arising under any REA; the costs or eipcnscs, If way, of providing and mainWhing any security alarm system for the benefit of lire Tenants of the Shopping Center; depreciation or any ) and/or machinery and equipment used in the maintenance and the fper olio' f fth'?C,nm coverage n Areus (if tined opp hag Center rcnlal paid fur such machinery and equipment (if rented); p (including the building of which the Demised Premises Is a part) under such policies with such coupunies •rnd in such limits us Landlord may In Its judgement determine to select (Including but nut limited to lire insurance with extended coverage, liability insurance covering personal injury, death, and property damage with a personal Injury endorsement covering false arrest, detention or imprisunmenl,•maliciuus prosecution, libel and slander, and wrongful entry or eviction, workinen's cumpensation Insurance, plate glass insurance, rent insurance, cuntracluul liability insurance, and fidelity bonds); the coal of removing snow. Ice, rubbish and debris from the Shoppiug Center, as well us lite Cast of inspecting the same and regulating traffic thereon; the cost of healing, ventilating and air cundilluning cnclused Common Areas; the cult of providing and replacing uniforms for, as well m for the gross compensation of all pcnunnet required lO supervise unit accumplish the furcguing; the rental paid for any music xcrvice prugrams and/or loudspeaker systems provided fur the Shopping Center generally, including The rust of furnishing the electricity therefor; plus an amount equal to firteun (159x) percent of the total of loll such expenses, whether heruln specifically mentioned or otherwise eantempluled by the Intent Wear, to reimburse Landlord for its adminlitrutive and overhead costs In providing the accounting, bookkeeping and collection functions required in connection therewith. In consideration of Landlord's agreement to Operate and maintain the Common Areas, Tenant covenants and agrees to pay a proportionate share of the expenses udvanccd and/or incurred by Landlord therefor tin each Lease year or Partial Leine Year Ns those terms ore defined In Parugraph 19 hcrcul) during the term at this Lcr.e, us herein before provided. While the Tenant's proportionate share of such expenses "ball nut exceed as sum equal to the product oblalncd by multiplying (i) the total of all expenses advanced or incurred fit each Lease Year by (it) is fraction the numerator of which shall be the number of square feet of flour area in the bemiscd Premises cud denominator of which shall be the number of square feet of leasable floor area in the Shopping Center, the Landlord shall annually estimate the Iolal cost of such expenses for the Shopping center on the basis of Its experience and reasunably, anticipated expenses therefor, and the Tenant shall pay to the Landlord, on the first day of such calendar month, together with its monthly Installment of minimum rent due hereunder, an amount equal Its 1112 of its proportionate share thereof. As soon us practicable following the close of each Lease Year, the Landlord Shull submit to Tenant u statement Indicating the actual amount or the expenses advanced and/or Incurred by Landlord In performing Its obligations hereunder for the Immeddlaicly preceding Lease Year, the actual amount uf'T'enam's prupprliunal share thereof, the amount of the Lundlurd's csllmale thereof for such Immediately preceding Lease Year, wild the amount of the resulting balance due thereon, or overpayment thereof, us the case may be. Appropriate udju"tmcnt shall thereupon be made between the parties, on dumattd, on the basis of such "linemen. Each statement shall be binding upon Tenant, Its successors and assigns, us to the mutters set forth therein, If no objection is raised with respect thereto ninety (941) drys offer submission of each statement to Tenant. Tenant shay have the right to examine Lundlurd's books and records at the offices of Landlord during ordinary business hours nut inure than once in each Lease Year fur the purpuse of verifying also nutters "et forth In the statement furlthc immediately prucuding Lease Year. Fur mid during the Irst Leave Year (or Partial Lease Year) us the cube may bcthe Tenant's uslimalud proportionate "hurl' of alto expense;j'or operating and maintaining the Cummun Arras of the Shuppinw Center shuli be puyublc mnolhfy fu the amounts sel forth as "lnillal Common Area Charge" on Page One hercuf, late same to be deemed additional sent hereunder and subject the annual adjustment heretofore provided. Tenant covenants and agree& that If the Lease Is terminated by reason of default on its purl, or if II falls to lake pusscosion of tine Dentised Premises or vacuics the Dumbed Premises prior to the expiration of the term hereof, it shall remain liable to pay Its proportionate Share of such expenses. Tenant agrees that this Is nut to be cunstrued as a penalty, but rather as is portion nl' late proper measure of Lundlord's damages In the event of the breach of this Lease by Tenant as afuresakl, TEN. S'T'ORE APPEARANCE OUTSIDE. Tenant shall mainlain its show winduws, if any, iu u neat and clean condition, "hail keep The sidewullu and Common Areas adjacent Its the Demised Premises clean and free front rubbish, "lull store all truth and garbage within the Dcmiscd Premises or within adjacent closed containers nut visible to the general public, and shall arrange for the regular pick up of trash and garbage. 'T'e'nant shall nut burst lrutll of any kind in or about the Demised Premises, nor shall Tenant permit rubbish, refuse or garbage to accumulate ur-liru huzurd to exist about the same. ELEVEN. SIGNS The Tenant shall not display any sign, picture, advertfsemenl, awning, merchundise, or notice on the outside of the building of which the Demised Premises is a purl, nor on the interior or exterior of any plate glass of the Demised Premises, without the prior written consent of Landiurd first had and obtained in each instance. It Shull he the obligation of the 'reliant to install, display wait thereafter maiuuin on late front facade of the Dumised Premises, u permanent outdoor, illundnmed sign, identifying its bulisess operation fit accordance with and subject fit •a plan or sketch thereof to be prepared by Tununl unit submitted to Landlord fur in prior approval which approval Atoll nut be unreasonably withheld. To establish guidelines fur le signs, type, color and design of such sawn, Landlord hus prepared Tenant Sign Standards, the sumo being attached herctu, made a part hcrcul' and marked Exhibit "D", it being so intended that Tenant's plan or sketch of suld sign shush be In pursuance of specificulfuns and requirements therein set forth. In addition to the foregoing, Tenant shall have the further obligation to install, display and thereafter maintain such under-ranupy sign Identifying Its business operation, as Landlord may require in the event there is included In the overall design of the Shopping Center such a canopy structure. In that event, the size, style, color, and design of the Tenant's under-canopy sign shall be subject to and In accordance with the standards, specifications, and requirements relating to such signs us promulgated by the Landlord. All work required for the installation and mah alenance or the aforementioned signs, or either of them, shall be performed by Tununl In a good unit wurkmadike manner, fn accordance with the rules, regululiuns, codes and ordinances of the authorities having jurisdiction thurcuf, at the sole cost and expense of the Tenant wills no expenditure whatever required of Landlord In connection therewith. TWELVE. OUTSIDE DISPLAYS. The Tenant shall not display any merchandise, place vending machines or show cases or other obstructions or any other object an the outside of the Demised Premises or the building ill which the Dcmiscd premises is a part, upon the Common Arco adjacent to the Demised Premises. THIRTEEN. INTERIOR ALTERATIONS. Tenant may, at Its expense, make such alterations and Improvements to file Interior, nun-structural purllens of the Demised Prendscs and hntall interior partitions as it may require, provided that the written approval of the landlord be first ubiaiacd wad that such improvements and alterations are dune in a workmpnlfko manner in keeping with off building codes and rcgufutiuns and fn no way horns the structure of the Demised Premises, provided at the expiration of this Luse or any exeusiun thereof, Tenant, if requested to du so by Landlord, at its expense, shall restore the within Dent!"d Premises to its original condition and repair any damage to the Dcmisud Premises resulting from the laslalladun or removal of such partitions, fixtures, or equipment as may have been Installed by Tenant. The Lundlurd reserves the right, before approving ;uny such changes, wddiduns, or alterations involving costs and expenditures in excess of S5000.00 to require the Tenant to furnish It a good and suf iciunt band to •assurc that the Landlord is Indemnified and held harmless from The payment of any claims, by way ill' either damages or liens. All of such changes, additions, of alterations shall he made solely ut file expense of the Tenant; and the Tenant agrees to protect, indemnify and save harmless the Landlord on account of any injury to any persons or properly, by reason of any such chunges, additions, or adlerwlfuns, and to protect, indemnify unit save harndcss Landlord from the payment of any clulm of any kind or churaclea on &account of bills for labor or malarlul furnished in cunncction therewith. FOURTEEN. FIRE. If the Demised Premises are damaged by fare or other insured casualty, nut occurring through may act or failure to met on the part of Tenant, ib ugcnls, scrvanls, employees, uud such damage can he repaired within 120 days of the dale of such occurrences, this Lease Shull remain In full force and effect, and the Lundlurd shall promptly repair such damage at Its expense, and In the event, there 6hull be a propurllunuic abaunnanl of rent for so much of ahe Demised Promises as may be untcnantuble during the period of repair or restoration. If in Ilia opinion of a registered Architect or Engineer uppul most by the Landlord Ito Dumi ed Promises urn damaged by lira or other casualty to such in extent that the damage cannot be repaired or restored within 120 days from ilia date of such occ'urrenc'e, or that such damage is due to any act or failure to act on the part of ilia Tenant, ihl agents, servants, or employees, this Louse shut terminate ul the option of the Landlord upon written notice given within thirty (30) days utter such occurrence. If this option is not exercised by Lundlurd, then this Lease shall continue In full force and effect. 11 25% ur more of ilia building of which the Demised Premises Is •a purl Is damaged by lire or uilier casualty to such an exle nt that the same cannot be restored within 120 duys of Ilia dote of such occurrence, obis Louse may be cancelled at the option of the Landlord upon thirty (30) days written noticayfrom the data of such occurrence, even though the Demised Premises have not become unWmanlablo, and there shall be a proportionate adjustment altruist to the date of lerntinullun. In addition, there shall be no obligation on ilia part of she Landlord to repair or rebuild during the lust three (]) years of she term of this Louse unless Tenant within fifteen (15) days after such occurrence, shall have oxurelsed may option to extend the total of this Lowe shut may be wffurded to 'tenant under ibe across horcof. Landlord's obligation to repair or icbuild pursuant Wilds Paragraph Fuurlccn shall be Iinh(ted to a busk building wait lha replacement at may interior work which may have originally been hutalicd therein ut L•rndlurd's cost. Except as hurrahs provided, there Shull be no ubllgaliun on the part of Landlord to repair or rebuild In case of lire or other casualty. FIFTEEN. HOLDOVER. If dhe Tenant shall occupy Dcmised Promises without ilia written ennsent of the Landlord after the expiration of the term of this Louse, wand rent Is occupied from said Tenant, such occupancy and payment shall be construed us an extension of this Lease fur the turns of one Installs only from line data of such expiration, unit occupation and payment thcreuller shall operate to extend the term of this Lease for but one month ut a lime unless other terms of such extension are reduced to and expressed in writing and signed by the pusses hereto, III such event If either Landlord or lenunt desires to terminate said occupancy at the end of any mmtith after the farminadion of this Louse, the putty so desiring to terminate the sumo shall give ilia usher putty at least twenty (20) days written notice to Ihul effect. Follows: on Ilse part of Tenant to give such notice slmll ubligmu it kit pay real for on addillYOYI calendar month, following ilia month in which the Tenual has vacated the Demiscd Promises. II' such occupancy continues without the coastal of Iho Landlord, the Tenant shall pay to Lundlurd, us liyuiduled danogus. double ilia amount of real and all other charges at ilia highest rule specified in Ilnis Lease for ilia lime Tenant rcmins pussession of ilia: Demised Premises or may purl Charter alter termination of the term by lupac of time or otherwise. SIXTEEN. INSPECTION. Landlord expressly reserves (he fulluwing rights alter: (a) u, enter the Denilsed Promises as any time In examine or to make such repairs, additions or ullcrutiuns as it may deem necessary liar lite safety, inhprovmnunl, air preservation thereof, or of the building of which ilia Demlacd Promises is a part, but Landlord insures nu obligation to make ally such repuirs other than as expressly stated in Ibis Louse; and (b) to enter Uhe Demised Premises, and display and maintain a notice or sign "FOIL RENT" and/or "FOR SALE" ul may tittle within six months before the expiration or on ilia sooner termination of this Lawc; mad (c) during or after the time Tenant •abandons or vacates the Demised Promises or otherwise defuulis hereunder, to enter unit decorate, remodel, repair, killer or otherwise prepare the same fur reoccupancy. Thu exercise of oily reserved right by Landlord shall never be deemed on aviation or dislurbunce of Temunt's use and pussessiun of the Demiscd Promises nor shall it retailer Landlord liable in any manner to Tenant or to any other person. SEVENTEEN. LIABILITY. Landlord shall nut be under any respunsibilily or liability In any way whatsoever for she quality, quantity, Impairmunt, Interruption, Multistage or other Interference with service Involving water, sower, hest, •air conditioning, gas, electric current for light and power, telephone, or any other service. Landlord shall nut be liable for any damage to property of tome or of ushers located on the Demised Premises, nor for the Ions of or damage to any property of Tenant or of others by theft or utlierwise. Landlord shall nut be liable for any Injury or damage to any property resulting from (but not limited lo) fire, explosion, falling piwtcr,-sr ceiling tiles, slemn, gus;•cectricity, water, robs, snow, or looks from any part of Dcmised Promises or from the pipes, appliances, or plumbing works or from the raaif, street or sub-surface or from any other placd or by dampness or by any other cause of whatsoever nature. Landlord shall not be liable for any such damage caused by other tenants of the building of which the Dcmiscd'Premises Is a part or persons in file Demiscd Promises, occupants of adjaccnl property, of the Shopping Center, or Ihr-public, or caused by operations fn construction of any private, public or quasi-public work. All property of Tenant kept or stared on the Demised Premises shall be so kept at the risk of Tenant only and Tenant shall bold Landlord harmless from may claims arising out of dmmuge to the same, including subrogation claims by Tenant's insurance carriers.; EIGHTEEN. LIABILITY FOR DAMAGES AND PLATE CLASS - TENANT. The Tarrant agrees to be respunsible for any damage to the property of the Landlurd which may raamlt from any we of the Demised Premises , or any act dune thereon by the Tenant or any person coming or being thereon by the license or permission of the Tenant, express or Implied; to save ilia Landlord harmless from any liability to any person or Estate, for damage to person or property, resulting from any such causes, unit to protect such liability with comprehensive public liability kind property damage Insurance, having a single limit liability of at (cast $1,000,000 fur damage to all property and fur all occurrence resulting In budily and/or personal injury to or the death of one or more persons and consequential damuges resulting therefrom, and to furalsh Landlord on tine Commencement Dale a cerliRcale issued by the insurance 10 currier evidemeing such Insurance in furce, wish Landlord and its Agents covered thereby. Tuuatt ugrecs to replace all glass broken, dumuged, or deslruyed In any manner whatever, the Tenant assuming ell rebpunslbilily for any plate glass In the Demised Premises, unit to cause such Ilublllly to be protected by plate gloss Insurance at Tenant's expense, and further to depudl such plate glass insurance policy or corlfliculu bhowing bush Insurance in fares: with Lundlurd at the Commencement Dale of the term of this Lease. In the event that Tenant duos out procure such Insurance us afuresuid, Landlord may, ul ht option, purchase the sumo In the name of Tenant and/or may at Its option include such cuverugc In may nimbler policy carried by Landlord. If Landlord excrclxcs Rs rights hereunder the Tenant shall, upon demand, pay all cubit thereof to Landlord Iogelher with an udminislralive charge of $100.00 for each such coverage made by Landlurd on behalf uf'i'coac. NINETEEN. PERCENTAGE RENT. Tenant agrees to pry Landlurd us rent, in addition lit [lie foregoing minimum rem, u sum squid to the amusing by which the mininom rent to be paid for any Lebow Ysor ( us hereinafter defined) Is less than the Pereculuge Rent Factor limes or multiplied by the gross sales (ab hereiurller delincd) of lhu Ucmhed Premises, for sold Lease Year, and sums being hercinu(ter sometimes referred its as "percentage rent". On or before the tenth (10th) day after the eapirunun or such month Tenatn shall submit to Landlord a sunumcm shuwing, in reasonable detail, the amount of gross "at of ilia Demised Premiscs during the preceding month. If tits Percentage Rent Factor times or multiplied by Ilia gross sales mode durlug the preceding muulh shall be In excess or Ilse minimum rent payable with respect to said prFCadbng month assort ilia asolount of sucl, eaechs shall be paid over to Lundlurd at Ilia same limn as Alto rendition of suiil monthly blmeorenl. If ilia Cunmmcoccmeut Umc skull be other than ilia list day of a calendar month, then the first month's grubs sales statement and pcrecutugc rent due, pursuant to this paragraph, shall include ilia portion of the month from the Comunencenncm Dale to ilia first day of the neat succeeding crlendur month. Each Leine Year during the term hereof shall be considered us an independent ueeuuming period 1'or the purposes of computing and determining the amount of percentage rent, if airy, payable hereunder, and ilia amount of grubs sulcs in any Lcate Vuur Shull nut be curried over tutu uny other Lcabe Year. II' the guaranteed minimum and percentuge rout is paid by ilia Truant with respell to any Lease Year shall exceed the Percentage Runs Factor times or multiplied by the Tenant's gross sales for such Lease Your. ilia umuunt of bush excum psrccatuge rcros actually paid shall be credited agalnsl the neat accruing installment or inblullmenls of minlmum a d/ur percentage rent due hereunder. The term "grubs sufcs" Shull mean the entire uniaunl of the,actual sales price, whether wholly or purity far cubit or on credit, of all sulcs of merchandise and services, unit ell obcr receipts of ull huaioca cunducied in or croon the Dcmiscd Premises, including ealulog, electronic and telephone sales, and including ull dcpubib nut refunded 16 purchasers, urders taken lit or from the Demised Premises although suid orders may be filled chcwhere; and bales by any sublessee, cuncesAunaire or licensee in or from the Demised Prennibes shall be treated us il'llic batch were muds' by 'renani will, the proper nuiuiion as to the source of such sales, and oil without credit it, Tcnmm 1'ur uncollcewd or unculluelible credit accuums. There Shull be excluded (ruin "grubs sales" and sans collected and paid soul for uny sales tux or lux bused upon ilia sale or sales of marehrndise and required by low, whellncr ouw or hcrculier in force, to he paid by Tenant or collected train its customers, to The extent Thal such luxes ure to be charges and collected bcparmiely and to be remained by Tenant to the tuning authorities. The term "grubs bulcs" Shull nut include die exclunge of merchandise between the shires of Tenant, if any, where such exchange of merchandise is muds solely fur ilia cunvenicnt operation of lhc'I'mant and not for the purpose of cumusumuting a bale which has therelofure been nude. ul, in, from or open Ilia Demised Premises or for the purpose of depriving Landlord of the be'lieli[ of a bale which would otherwise be made at, in, from or upon the Dcmiscd Premises; nor shall raid lean include Ilse umuunt returned to shippers or manufreturers, nor the amount of any cash or credit refund made upon any sale where mcrchundisc sold, or some purl thercuf, is [hereafter returned by the purchaser to and accepted by the Tummut. Each sale upon inslallmant or credit shall be treated us a sale for ilia full price In the month during which seals bola bllall be nlade irrespective of the that when Tenant shall receive payment (whether full or partial) from its cmonnerh. Tenant shall and hereby agrees to keep In the Dcmiscd Premises, during the turn hereof, fur a period of three (3) consecutive years following the end of each Lease Year, u permanent, complete and uccurale record of oil grubs sales and revenue derived from business conducted In the Demixcd Premises fur ouch Lease Year. 'tenant further agrees to keep, retain and preserve fur at Iambic two (2) years after the eapirulion of each Lease Year, all original sides records and sales slips or talcs checks and other pertinent original sales records. Accurate nun-rebeltuble cash registers or other modern systems shall be Installed and kept, or coaxed to be im[ullcd and kept, by ilia Tenant within the Demised Premises, which shall show, rucord and preserve, in complete deail all Items making up gross sales, us hereinubuve defined. All such records, including sales lax reports and business and occupation lax records •rnd ell other recordstmd buuks kept by Tenant In relation to Ilia business conducted an the Demised Premises shall be open to We inspectiuii and audit of Landlord and Its representatives of agents at all reasonable limes during ordinary business hours. Tenant shall ulsu submit to Landlord an or before the Ihirllelh (3010) day following the end of each Lease Year at ilia plucc then fixed fur the payment of rent, a complete audited statement made and certified by a Ccrlilicd Public Accountant and uhu certified by u duly authoAzrd-ul'lictr of Tenant, showing accurately In reasonable detail ilia amount of gross sales made by Tenant and Its sublesiecs, concessionaires, or licensees, If any, upon and within ilia Dumised Premises during the preceding Lease Year or Partial Leasc Year, if any, and shall submit on or before the thirtieth (30th) day following the expirutiun or termination of the term a like slaiumew covering [he preceding Lease Year or Partial Lease Year, If sty. In the event that the Tenant or parties uffiltuted with Tenant conduct one or more operations or stores either within the Shopping Center or elacwhire, the Landlord Is hereby given the right to Include In its audit an inspection of all books and records of such other shires or chain-wide operatiun In order so sai"fy itself us to ilia proper allocation and ineiusiuns of gross sales to [he Demised Premises. Failure of the Tenant to meet a scheduled audit date at the time fixed by the Landlord shall be deemed a default under this Lease and Landlord, in addition to all other remedies afforded to it under this Lease, shall be promptly reimbursed by Tenrnl for all costs of such ichcduled uudil together with an adminhirallve fee of $100.00. Failure of Tenant to promptly supply Landlord with the monthly and/or annual reports required hereunder 11 shall be deemed a default under this Lease and, in addition to all other remedies •aflorded to it under this Lease, Landlord shall be entitled, without notice to the Tenant, to conduct an audit of Tenant's books fur such period or periods during which Tenant bas failed to supply Landlord with the reports at the cost and expense of the Tenual of Tenant together Willi an udmitdalralive fee of 5100.00. The receipt by Landlord of any statement or payment of percentage rent fur any period or the failure of Landlord to make on audit for staid period ahuli neither bind Landlord as to correctness of the muiumenl or the payment, nor bar Landlord from collecting at any time thereafter percentage rent due fur said period. If any audit by Landlord or its agents of'ronunl's records shall reveal a deficiency of any payment of purceutuge rent Tenum shall forthwith pay to Landlord the amount of deficiency together with an Interest at u rate or twelve percent (12%) per unnum from the date when sold payment should have been mode, together with reasunable cost of such audit. It is agreed that nothing contained In Ihd Lease shall be deemed or construed as creating a parincrihip air jadni venture between Landlord and Tenunl, or between Landlord unit any other party, or cuusu Landlord all be rebpmuible In any way for the debts or ub0gutluns of Tenant, or any other party. Fur the purposes of this Lease, the "first Leine Year" shall mean a period beginning January Ill following Use Commencement Dole hereof unit extending twelve (12) calendar months thereafter, ending December Jim, Load each subsequent Lease Year shall be the twelve consecutive culendan month period thereafter (January, 1st to December 31s1). The period from the Cummencenienl Dole of this Lease to the next buccecding December Jisl, and from the January 1st next preceding, unit extending to the terminulion, Oulu of this Lcabe, shall be considered as "Partial Lease Years", and any changes under this Lease which are computed on a Leusu Year buds shall be uppruprlately pro-reed so us au bu cumpuled as separate wad distinct accounting periods In uccurdaneo Willi the terms and conditions aforesaid. TWENTY. BUSINESS OPERATION. Tenant shall, during the term of this Lease, cuntinuuusy use the Dumbed Premises for rite purpose stared on Yugo One of lids Lersu, carrying on Iherriu'1'emml's business undertaking diligently, ussiduuusly and energedcully under the trade name stated tan Page One. Teesl shall nmlntaim un lite premiacs •r subalumlul stuck of goods, wares, and merchandise and equipment, adequate to assure successful operation of Tenum's business. Tenum shall keep the premises open and available for bushness activity therein during all usual days and hours us are set by lite Landlord except when prevented by strike's, fires, casualty or other cause's beyond TcnunT's reasonable control. Tenant shall not divert elsewhere any trade, commerce or lamiocbs which ordinarily would be transacted by Tununt in or from the Demised Premises. 't'enant shall nut conduct any "fare sale", "distress sale", "bankrupicy sale", "guing out of business sale", tar oily other sale designed to convey to the public that the business uperations are to be dbcmnioued and 't'enant !hull nut apply for or cause to be applied from any municipal, stale, local, or federal license or permit applicable to such sales. TWENTY-ONE. WAIVERS. Thu failure of Landlord to Insist, ill any line tar more appliances upon a strict performance or observance by Tenant of any of the covenants air this Luusr, or to exerci a any option herciu contained, shall nut be construed as •a waiver or relinquishment for the future of such covenant or upttun, but the aurae shall continue unit remain In full force and e'l'ect. The receipt by the Landlord of rent, Wish knowledge of the breach by Tenant of oily covenant hereof, shall nut be deemed a waiver of such breach and no waiver by lite Landlord of any provision hereof slnull be deemed to have been made unless expressed In writing and signed by the Landlord. Even though the Luullord shall consent to on assignment undFor bubletling hercur no further usbignnncul undlur subletting shall be made without express consent In writing by the Landlord first had and obtained in each instance. TWENTY-TWO. SUBORDINATION. This Lease, at the uption of Landlord, shult be subject mill suburdinute at all limes, In the lien of the murlgages now or hereafter nnade upon the security of the shopping Center • or the Demised Premises, and to all advances made or hereafter to be made upon the sucuriay thercuf, unit subject mid subordinate to the lien of any mortgage or mortgages which at any time may be made a lien upon the sume, and subject unit subordinate to any lease or other arrangement or right to pussessiun under which Landlord Ts in control or Demised Premises undlur the Shopping Center and to the rights of the owner or owners thereof, andlor the rights, privileges, and burdens arising from any REA affecting the Shopping Center. The Tenant shall execute and deliver such further instrument or instruments substantially In the form of Exhibit "E" •uttached bureau subordinating this Louse to the lien of any such mortgage or mortgages, lease or leases, in shall be debited by way nmrtgugec, proposed mortgagee, lesser or proposed lessor. The Tenum hereby appoints the Landlord the attorney-in-Iaet of the tenant, to execute and deliver nay such Instrument or instruments fur the Tenanl. The Tenant shall have no power to do oily act or make any contract which may create or be the foundation for any lien, mortgage or other encumbrance upon the estate of the Landlord or of any interest of the Landlord in The Demised, Premises, or upon or In the building of which the demised Premises..is a purl or otherwise within or upon the Shopping Center, it being agreed Vial should the Tenant cloacae any such Improvements, aloradons or repairs to be made or material furnished or labor performed therein or thereon, neither the Landlord nor the Dumbed Prrmiscs nor any other portion of the Shopping Center shall under any circumstances be lienuble for the purpose of enforcing payment of any of file expenses Incurred or for The value of any work done or mrlurial furnished (hereto or any purl thereof, the parties expressly Intending that hereby all Improvements, aloraliuns, repairs, materials and labor shall be performed at the Tenant's auto cost and expenses and the Tcaanl shag be solely and wholly responsible to contractors, laborers and maltela men furnishing labor and material in connection therewith, all such laborers, matcrialmcn and eunlruclars being hereby charged with notice that they must look solely and wholly to the Tenant and the Tenant's Interest in the Demised Premises, to secure the payment of any bills for any such work performed and materials furnished. TWENTY-THREE, DEFAULT. (a): (1) If Tenant shall default in the payment of any runt of other payments required of Tenant, or any part thereof and if such default shall continue for five (S) drys after the payment shall be due, or (2) If Tenant shall default in the performance or observance of any other agreement or condition on its purl to be performed or ubserved and If Tenant shall fall to cure said default within tun (10) days alter notice of bald default from Landlord, or (J) If any person shag Icvy upon, take, or attempt to nuke this leasehold Interest or any purl thereof 12 upon uxccutiun, sitiuchment or other process of law, or (4) If Tenant or any aflilimic of Tcnuas Shull make default with respect to any other Lease or agreement between It or Landlord or silly ufblialc of Landlord, or (5) If the premises shall be deserted, vaculed, abandoned, or business operations shall nut be conducted therein fur a pcrited OC two (2) at inure Buys, or (6) If this Lcuse or uny other interest Ihernin shall by operation by low devolve upon sir puss Ia any, person or persons other than Tenant, or (7) If Ten"I shall fail to move Into and lake pusussion of the Demised Prumisus and Open for business within thirty (30) days utter Landlord's givlntg ntice to tenum Utui tile Demiowil Premises ore ready for occupancy by Tenant, then the Landlord may treat the occurrence of any unu or inure of the foregoing events as a breach of this Lcuse, and In addition to any or all uglier rights or rumcdics of ilia Landlord hdreunder and by the law provided, It that be, at the option of the Laddlord, without further notice or demand of silly, kind to Tenant or•uny other person: N • (u) the right of the Landlord to dcclure the term hereof undid and to rucnter line premhes unit lake possession Ihorcur and remove ell persons therefrom, and the Tcoau snail have no further claim ` thercun or harilbader; and/sir '• - •• (b) Ilia right of rile Lundlurd without declaring tills Lcasc lcrininwed to reculer ilia prouises and, occupy Ibe whole sir any part thereof, rcmuvu oil persons and prupurly therefrom a)Uter by summary, dispossess proceedings or by a sullublc uuliun sir proceeding at law Of In equity, or by force, or ulhcrwisc, without being liable fur any damages therefor, no such reentry by Ibe Landlord to be deemed or uthurwise construed us an acceplunce of a surrender of this Lcsisv; and/or (c) ilia right of ilia Landlord, even though It may have recatercd the premhcs, to thereuI cr Its elect to terminate this Lease and all the rights of the Tenant In or to ilia larcinksub. Should the Landlord have recnlered ilia premises under the provisions of sub-paragraph (b) above, the Landlord shall nut he deemed to have terminated this Lease, or released the Tenant train iu liability lu pay the rents unit additional rents then owing unit due and/sir thereafter to accrue hereunder, thc•ca1'ler to accrue, or lilt liublifty fur duinugos under any of ilia provisions hereof, by any such reentry or by uny uctiun )n unlawful.deiainer, or utherwisu, to obtain pussessiun or the demised Premises, unless the Landlord shall have notified the Tanurit In writing ihul 11 has so elected to lerminue this Lease, and the Tenant further covenants Ihul the service by Lundlurd Of uny italics: pursuutl its the unlawful doninur slatuics or the Slula where the Shopping Center is lilualcal and the surrender of pu»cssiun pursuant to such notice shall nut (unless the Lundlurd elects to ilia cunirury at tine tittle of or ul laity lime subsequcu its the serving of such nuliccs and such election is evidcuced by a wrilten nutice to the Tenant) be deemed to be a lcnninalion of this Leasc. In the event of only entry or eking pu»uss)on of ilia prcoiscs as afuresuid, the Landlord shall have the right, but nut the obligullon, to remove therefrom oil or any part of the personal properly located therein uud may place the slime In slurugc ul u public warehouse ut lite expcnsu and risk Of ere Owner sir owucrs thereof. Should ilk Landlord elect to terminate this Lease under the provisions ol'sub•puragraph (a) or (c) ubuve, the Landlord may recover from the Tenunl as damages: (1) the worth of the Ibne of award of any unpuld rvuls uud additional rents which had been Burned ut ilia tittle of such termination; plus (ii) the worth at the lime of uward of ilia amount of ilia unpaid rents •and uddiional roue which would have bean earned offer termination until the lime of award, plus; (III)thu worth at the lime of award of tine amount of the unpuld rents and additional rents fur Iht: balance of Ihu term after the time of award, plus IN) any other umuunt necessary to cumpensule Landlord for all the detriment proximately cuuscd by Tenant's failure to perform Its ubtigulions under ibis Lease or in which Ilia Ordinary cuurse of. things would be likely to result therefrom, Including, but not limited to ugly cults or capemcs by Lundlurd In maintaining or preserving the premises after such dcfauh, preparing the premises fur retelling to u new tenant, any repairi or altcruUuns to the premises for such rclcllir%, leasing commissions, or any Other costs necessary or appropriate to Met the prcm)ses; and (v) of Landlord's election, such other amounts In addition Its or In lieu of the foregoing as may be permitted from lime Its lime by the laws of the Stale where the Shopping Center is situated. As used in sub-parugraphs (1) and (11) above, the "worth at the linlle of award" is computed by allowing ioles est at the rule of etgltec t percent (18%) per annum. As used is sub-paragraph (III) above, the "wurlh at ilia tinge of award" is computing by discounting such amount at the lesser of either llm discount rate of the Fedcrul Reserve Bank siluacd nearest to the location of the Shopping Center in effect al the Ibne of the uward, or eight percent (8%a). Fur all purpuses of this Puragruph 23 the term "rent" shull be deemed to be the minimum annuul rental, percentage rental and all other sums which by the terms hercuf ore decmud uddlounal real or are utherwise required Its be paid by Tenunt pursuit to the terms of this Lease. All such sums, other than ilia minimum annual rental, shall be computed sin the basis of the average munlhly amount thereof accruing during Use Immediately preceding sixty (60) month period, exc'e'pt that if It becomes necessary to compute such rental before such u sixty (60) month period has occurred then such rental shall be computed on the bits of the average monthly amount hereof accruing during such shuricr period, III the event of default, ull of the Tenant's fixtures, furniture, equipment, Impruvcmengs, additions, alterations, and other persunal property shall remain on the Demisud Prcmiscs and in shut event, and cuuttnuing during the length of said dcfuull, Lundlurd shall have the right to take the esclusivc pussessiun of same and to use same, rent or charge free, until all defaults arc cured, or at Its option, of any lime during the term of this Leasc, to require Tenant to forthwith remove same, failing which the Landlord may effect such rumuvrl at the sale cwt and risk of Tenant. Notwithstanding any other pruvlsiuns of the Purugruph 23, file Landlord agrees that if the default complained 13 r of, other than for the payment of munics, Is of such a nature Ibal the some cu nut be rcctilivd ur cured within the period requiring such recillicatlun or curing as spceilled in the well, cn notice relating dterctu, then such default shall be deemed fu be rectlied or cured If the Tenant within such period Shull have cumuncuced the rectiticuoun and curing Ihercuf and shall continue thereuflcr with all due diligence to cause such reciillcatiua and curing thcreal' -and dues bu diligently complete the some. The remedies uffurded file Lundlurd in this Puragruph 23 shall be In addition and supplcmeniul Ill ull usher rights or remcdics which the Landlord may have under the laws then in farce. The waiver by Landlord of any breach of any term, covcnunt or condition herein cutnalncd shall nut be deemed lu be 4 wuivcr of such term, covenant or condition shuuld there occur any subsequrnl breach of the sums or any other term, cuvenunl or condition herein conlulned. The subsequent acceptance of rent hereunder by Landlord shall out be deemed to be a waiver of any preceding breach by Tcnunt of any term, coveoanl ur cundiliun of this Lease, other than the failure of Tenant to pay the particular, rental so accepted, regardless of Laudlord% knowledge of such preceding breach at the time of acceptance of such real. No covenant, term, or cundiliun of this Lease shall be deemed to hove been waived by Landlord unless such waiver be In writing signed by Landlord. All sums other than minimum rent due and payable by Tenant hereunder, such as, by way of citiunple and not in limitation, percenluge rents, common urea maintununce cxpopscs, utility charges, real estate talcs, c operulive advcrllsing uod promotional charges, uiturney's fees, collection fees aid court cosh shall be deemed co be unit Shull become uddlilunul rent hereunder whether or not The some but, desigamed as such, and shall be Included In the term "rent" wherever used in tills Lease (notwithstanding that the words "mddiliunad rem" arc used in specific cubes, but nut used in utter (uses); and shall, unless otherwise specifically provided hcreinbe due •rnd payuble an duniaud or together with lba nest succeeding installment of minbnum rent, whichever shall firbi occur, and Landlord shall have the runic remedies fur frilurc to pay the same us for u nun-payment of minimum rent. The parties herctu distinctly cuvenunl and agree Ihul uny puymcnt of real or additional real made hereunder may, of file option of file Lundlurd, be accepted and applied In puymcnt on uccuunt of lite rent or additonal rent lungcsl overdue under this Lcuse, notwithstanding any autcment lu the contrary endurscd tin or mccumpanying each payment. TWENTY-FOUR. ATTORNEY'S FEES. Tenunl ugrecs shut In file event that any defuull by it iu perfur iunce of any of the terms, conditions or covenants of this Lcue requires the Lundlurd, in the exercise of its sale discretion, go enguge the berviecs of any ulturncy, whether or not an employee of the Landlord, lit cufurce cumpliunce by the Tenant with terns, conditions and covenunis hereof, the Tenant will rcimbune Landlord fur tiny and all expenses incurred In its use for such attorney and in any action which said attorney may pursue. Such expense hull Include, but arc not limited to: legal fees, court culls, culls of filing and serving summons and/or connplainis, tie. The term "dcfauli" us aged in this puragruph shall moan, but shall not be cunalrucd as being lindiit lit moaning w nonpayment of: minimum rent, percentage rent, utility bills, taxes, promoliun and adverlibiug clmrges, unit common area expense contribution. Tenant further agrees that should It commit any default or defaults under Ihib Lease, Landlord soy, at its election, hnmedfulely or Of ugly time lhurcufler, without waiving oily claim fur breach of agreemcul, unit wilhoul notice to Tcnunt, cure such default or defaults for Ihp a@cuunt of'f smut. If the Landlord shall iubtiute on weliuu or summary proceeding against the Tenant based spun such dvraull, ur If fhc Lundlurd shall cure such dufuull or defaults for the account of Tenant, then the Tenaol will reimburse lite Lundlurd for the expense of utorney's fees unit dibbursemcnis thereby incurred by the Landlord, so far us the same ore rcusunuble in unount. The coat to the Landlord Ihercuf shall be due and payablu an demand, shall be deemed to be additional rent hereunder and shall be added to file instalment of rent next accruing or to any subsequent Installmcal of rent due and payable hereunder, at the election of Landlord. Landlord shall not be respunsible to Tenant for any loss or dumuge rusulling in any manner by reason of its undertaking and pursuing any of the rights and remedies which by The terms hereof arc reserved to •rnd far the benefit of Lundlurd. TWENTY-FIVE. SECURITY DEPOSIT. Concurrently with the execution of this Louse, Tcnunt shall deposit with Landlord the sum set forth on Page One hereof as Security Deposit, the same to be meld by Landlord without liability fur interest, us security for the full and faithful performance by Tenant of the terms and conditions by it to be observed and performed hereunder. If any of the rents herein reserved, or any other sun payable by Tenant to Landlord become overdue and remain unpaid, or should Landlord make any payments on behalf of Tenant, or should Tenting full to perform any of the terms and conditions of this Lease, then Lundlurd, at its option, sand without prejudice Ill any other remedy to which Landlord may have on account thereof, shall -appropriate and apply said dupuslt? ur so much thereof as may be required to cumpensuic or reimburse Landlord, as the case may.be, toward the payment of rent or addillunrl rent, or loss or damage sustained by Landlord due to the breach or failure to perform on the part of Tenant, and upon demand, Icaunt shall restore such security to she original sum deposited. Cutldlfluned upon the full compliance by Tenant of all of the terms of this Luse, and the prompt payment of all rents and other sums due hereunder as and when they fat due said deposit shall be returned in full to Tenant within thirty (30) days after the end of the term Hereof. In the event of a suit of the Shopping Center or lease of the land ua which it stands, subject to this Lewis, the Landlord shall have the right to transfer the security to the vendee or lessee and The Landiurd bhull be considered rcicubed by the Tcnunt from all liability for the return of 6uch security and the Tenant shall look Solely Ill the new Landlord for the return of the sold security, IT being agreed 1but this shut upply to every transfer or assignment made of the security to u new Landlord. The security deposited under this Lcabe Shull nut be murigagcd, ussigncd or encumbered by the Tenant without the written consent of the Landlord and any aucmpl to du so shall be vuid. In the event of any rightful and permitted assignment of this Lease, the said security depusit shall be ducmcd to be held by the Landlord as u deposit made by the ussignee and Landlord shall have no further nubility with the respect to the return of said security deposit to gbc assignor. TWENTY-SIX. REAL ESTATE TAXES. As used herein, the tern 'Taxes" shall mean and Include all real 14 estate lures, ussessments, license and permit fees, charges for any euscmenl, Including an REA ( us hereinchawhere defined), mulntuined fur the benefit of Ihu Demised Premises unit other govcrunenW levies mhJ chrrgcs of curry kind and nature Whalsuever, general and special, extraordinary us weli'as ordinary, foreseen and wild c ar en, wild each and every bnlallmcnl thereof which shall, ur may during The term of Ihis.Lcase be levied, ussesaed, imposed, become due and payable or ilells upon, or urisc In connection with the use, uccupulley or possesslull of, or grow due and puyuble out uf, ur far, file cogire Shopping Center of any purl thereof, of Oily rang or income received therefrom, or any land, buildings or other improvements therein, Including Interest un insildlmcul payments and all coats and fees (including reusunuble ullurncys' fees) Incurred by Landlord In contesting Taxes, asscssmcmts and/or ncgoffuling with public uulhorilles Willi respect to the same. If of any lime during the term of this Lease the mctheas old/ur bases of taxation pruvailing al the Commencement Dole shall be ullercd so that In uddidun to, or In lieu of ur as a subsf7mtc fur the whole ur oly purl of the Taxes now levied, asse"cii or Imposed on rcol eslafe as such, Ihwe ahull be Icvlcd, tiaxcsscd, or Imposed (1) u lux on the renlx received fruits such real eslule, or (if) u license fee measured by the rants receivable by Landlord (rum the Shopping Center or uny portion thereof, or (Ili) a lax or Iiccmc fee impusud upon Landlord which Is otherwise memsurcd by or bused in whole or In part upon rents dcrivcd from the whole Shopping Ccnlcr or will, portion Ibareuf, then unit fit any ul' such events, the some ahull he Included in the computation bercululer of Taxeb. Tenting shag pay ill each Tax Yaur during file term of Ijlfs Lease ua addidunal rcm, u propurfiunalc share of all such 't'axes, of the times and in file manner hcrelawffcr provided. While the Tenant's propurtioowic share of such Taxes Shull not exceed a sum equal to the product obtained by multiplying (I) the total of all Taxes usacted or imposed agalnsl the Shopping Center In each Tax year by (if) a fraction of the numcrutur of which *hull be the number of square fggl of floor area In the Demixcd Premises and the denominator of which shall be file number of square fact of lewsuble Iluur area In Ilia Shopping Arco, the Landlord ahull annually cilimala the total onoum of such Taxes for the Shopping Center un the busts of Its cxperlence and reasonably unlicipatcd charges therefor, old the Tenant shall Puy Io the Landlord, un file first calendar dry of each month, together with Its monthly hulallmculs ul' ndnimum rain due hereunder, on amount equal to 1/12 of Its proporlionmle share thereof. As soon us pracdcuble following file close of cacti Tull Year, Luadlord shall submit to Tenant a stucment indicaling the actual amount of file Taxes assessed or Imposed against Ibe Shopping Center for the Immediately preceding Tux yuwr, and the moment of the reboiling balance due thereon, or uverpuyment thereof, us the case fully be, with an upproprfale adjustment go be thereupon etude between the purlcs, on demand, an ilia basis of such statement. Each xlmlameal shall be binding upon Taming, Its successors and assigns, as to the matters set forth therein, if no ubjucliun Is raised with respect thereto within ninety (90) days offer submission of each slulemanf to Tenml. The term "'faxes" shall nut include any interest or other charge Imposed by u1y fusing uulhurily us •a penalty or delinquency charge, based upon laic puymcm of any lux obligation by the Landlord. The failure or Lundlurd to provide such statement lu Tenant as required above shall not relieve Tcounl of its ubligaliuns bercundar or fur the specific Tax Year In which any such failure occurs, nor ahull ouch failure in uny way rcilcve The Landlord frum its ubligalion to provide such stulumenl. As used hereiu,-lhe fern' 1'wx Ycur" shall be deemed to mean cuch twelve (12) mmnih period (dcenled, for the purposes of this Paragraph 26 to hove 365 days) established as the real estate Tut. Year by the fwxing authorities having lawful jurisdiriun over the property comprising the Shopping Crnler. Fur and during die first Tmx Year for Partial Tax Year, us the case may be) occurring during the term of this Lease, the Tenting's calinlulc prupuriuuule share of file Tuxes applicuble to the Shopping Center shall be payable monthly In Ibe anluunlb bet forth tie Page One hcrcof us "Initial Tax Share", puyuble mollhly as above provided, the smile lu be deemed mthh6un4l rent hereunder mtd subject to the annual adjustmenl hereinbefure provided. Tenanl covenunls unit ugrecs Phut fl' this Lease is laminated by reason of defaWt on Its pyrt, or if it falls to take possession of Dcmised Premises or leaves the Denttsed Premises prior to the . expiration of the term hereof, it shall remain liable to. pay Its proportionate share of such Taxes. I'enoa 'agrees that .this is not to be construed as a penally, but rather us u portion of the proper measure of Landlurd's dumagcx in the even of u breach of this Lease by Temmnl as aforesaid. If of any time during the term of this Leash, or any extension or renewal thereof, the laws of any tine or more of the jurisdictions In which the Shopping center Is located Imposes, charges, asxusaca or ]cvtcs upon or uguimt file rents (whether guaranteed minimum, pereenlage rent or additional feat, or any or all of the foregoing), or any other consideration in lieu of the rent payable hereunder, a fax, imposition, charge, assassnlcml, levy, excise fee or license fee, then in the ubsence of any provision to the contrary specifically contained in such laws, the same shall be paid in full by the Tenant and such obligation may be enforced by Landlord In the some way unit manner as provided fur the enforcement of the payment of minimum runt, percentuge rent and additional rent hereunder. TWENTY-SEVEN. EMINENT DOMAIN. If 10% or more of file building of which the Demised Premises is w part or-15% or more of the Shopping Center shall be acquired or cundcmned by right of eminent domain for any public or quosl-public use or purpose, then Landlord at its election may lermlimic lhia Lambe by giving nblice to Tenant of its clecdon to do sin, and in such event rentals shall be apportioned and adjusted us of the Jule of termination. If the farm of this Lease shall out be terminated as aforesaid, then the some shut] continue in full force mad al'fccl, the Landlord Shull within a reasonable time after possession is Physically taken (subject to delays due to shortage of Imbor, mulerials or equipment, labor difficulties, breakdown of equipment, government restrictions, fires, other cabumilics or other causes beyond the reasonable control of Landlord) repair or rebuild what may remain ul'the Shuppiug Center, exerting cgs hest efforts to preserve file Deposed Premises for the ofcupancy of the Tcuanf. Should any such mcqulsfttun or condemnation Include the Demixcd Premises or any portion thereof and Landlord shall not elect to terminate this Lease as aloresuid, then and In such event a just proportion of the minimum ran[ shall be ubaled, according to the nature and extent of the injury of the Dcmised Premises, until what mwy remain of file Denhised Premises shall be rt:prircd and rebuilt as aforesaid; and thereafter a just proponlun of the minimum rent shall be permanently abated, according to the nature and extent of the portion of the Demixcd Premises acquired or condemned for the balance of the term of this Lcue. L ndlurd reserves to itself, and Tenant assigns to Landlord, all rights to damages accruing on uccuunt of any .such taking or condemnation or by reason of any act of any public or quabi-public authority fur which damages are .payable. Tenant agrees to execute such Instruments or assignment as may be required by Landlord, to join with 15 Landlord In any petition fur the recovery of dumogcs, It requested by Landlord, and to turn over to Landlord any such dammgus that may be recovered in any such proceeding. If Tenant Shull full to execute such Insuumems us may be required by Landlord, or to undertake such other steps as may be requested as herein stated, then nit In any such i event, Landlord shall be deemed the duly authorized Irrevocable agent and attorney-if-fact of Tetuan to execute such Instruments and undertake such steps as herein stated In and on behalf of the Tenant. It Is agreed and undurstuud, however, that Landlord dues nut reserve to iteelr, and Tenant dues not assign to Landlord any damages payable fur trade fixtures Installed by Tenant al Its own cost and expense which are nut part of the realty. .1 1 TWENTY-EIGHT. INTERPRETATION. It is agreed that If uny provision of this Leave Shull be determined to be void by any court of competent jurisdiction then such delermin.select shall not urfect any other provision of this Leave, all of which other provisions shall remain In full force and effect; mad it Is the Intention of the parties hcrelu that If may provision of this Lease Is capable of two constructions, one of which would render the provision void and the other of which would render the provision vulld, then the'pruvislun Shull have the moaning which renders It valid. TWENTY-NINE. IvI1SCELLANEOUS PRWNIONS. It is ugrccd :Lul nelibur Lmdlurd nor unyune acting on its behalf has mude any statement, promise or agreement, or taken upon Itself any engagement whatever, verbully or In writing, la cunnlct with the terms of this Lease, or that in any way modifies, varles, alters, enlargers or invalidates any of its provisions, and Ihut no ubllgulluns of the Landlord shall be applied in addition to the obligations herein expressed. Within lea days after request therefor by Landlord, or In the event that it be required upon may sale, assignment or hypothecation or this Lease and/ur or the Demised Premises and/ear ilia lurid thereunder by Landlord, Tenant agrees to deliver In recordable form it cerllncmle to any proposed mortgagee or purchaser, or to Lundlurd, certifying(If such be the Buse) that this Lease Is In full force and effect and that there are no defenses or offsets thereto by Tenunl(ter sluling those claimed by Tenant), and such other relevant fuels us may be therein requested. The title of the various Articles of this Leale are for reference and index purposes only, and none of them shall be taken Into consideration or given any effect whutever In determining the meaning ter scope of the Article to which any of them apply. The use of ny pronoun referring to either of the parties of this Louse shell be construed to include uny or no gender or any number. It Is understood that the Term Landlord and Tenant used herein, shall be construed to mcun Landlords and Tenants where there Is more than one, and necessary grammatical changes required to make any provisions hereof apply either le corporations ter individuals, masculine or feminine, shall in all cases be ussunted us though fully expressed. The word "Landlord" us used in this Lease means only lite owner fur ilia lime being or Landlord's interest in this Lease. In the event of may assignment of Landlord's Interest in this Lease, the assignor %hull no longer be liable for the performance or ubservuce or any ugreoments or conditions on the part of the Landlord to be performed or observed. In the event the Tenant hereunder shall be u curpur•+tluu, the parties executing this Lease hereby covenant unit warrant that: the Tenant is u duly qualified corporation and all steps have been taken prior to ilia duic hereof to • qualify Tenant to do business In ilia stole wherein the Demised Premises are located; all franchise and corporate taxi's have been paid to dale. all future forms, reports, fees and other ducumenls necessary to comply with applicable lows will be token fir Illed when due. In addition to the minimum and percentage rents herein provided, all other payments to be made by Tenant, either to Landlord or Merchants Association, shall be deemed to be and shall become additional rent hereunder whether or not ilia same be designated as such, and shall be Included In the term "real" wherever in this Leusc(nulwllhslunding that the words "additional rent" are used In specific cases, but nut used In other cases); and shull, unless otherwise specifically provided herein, be due and payable upon demand or together with the next succeeding Imlalimnt of minimum rent, whichever ahtl first occur, and Landlord shall leave the same remedies for failure to pay the same as for a nun-payment of minimum rent. Anything contained in this Louse to the contrary notwithstanding. Tenant agrees that It should look solely to the Estate and property of the Landlord In this Shopping Ccntur for the collection of any judgemonl(or other judicial process) requiring the payment of money by Landlord In the event of u dafuull or breach by Landlord wish the respect to any of the terms, covenants and conditions of this Lease to be observed and/ear performed by Landlord, unit no other property or ussetx of Landlord shall become?subjecl to levy, execution, attachment or other enforcement procedures fur the satisfaction of Tenant's remedies. If the building is transferred or conveyed, Landlord shall be relieved pf all covenants and obligations under this Lease thereafter occurring and Tenant shall thereafter look to such transferee for the performance and observance thereof. THIRTY. MERCHANTS" ASSOCIATION. Tenant agrees lhut as soon ux Merchant's Association is organized, controlled and operated by unit among the tenanix of the Shopping Center, it shall promptly become a mber thereo renewals sions or ext Lease this term uring the of, and , It shall abide ofxand r main ndgood standing In such As oclatl n, as well as particip to fully in itsractivities and promotion 1 latiunx programs. Tenant agrees to pry dues to the Merchants' •rsxoeluliun in amount assessed per annum, such sum to be use solely fur advertising and promotional purposes, and to be payable upon receipt by Tenant of bet me is urbills einf rendered therefor by the Association. Said dues shall be subject to annual adjustments approved by majority the members of the Association Increasing the same to the extent required by Increases in the costs of promotional, public relations and advertising services. Tenant agrees to advertise in any and all special Merchants' Association newspaper sections or advertisements and agrees to cooperate in the Merchants' Association special sales and promotions. It Is expressly agreed and understood that nolldng contained in the by-laws or may other regulations, established failure of any otherllcnanl or ite owner, o ccupant ov len•+nl of any department store, variety store fir supermarket Lease. The 16 within The Shopping Center or adjoining to contribute la, purlicipule in or be a member of the Merchunls' Association shall In nu wuy affect Tenual's obligations hereunder. Membership, contribution and participation therein being a muteriul covenant of the Tenunl under this Lcuse. The pruvisiuns of tills Article 30 may be, enfurecd by the Merchunls' Assuciuliun, Ilia Lundlurd, or built of them, by Injunction or other upprupriule equitable remedy, or by an action at law or wherwisu. TIIIRTY-ONE. NOTICES. Wherever in this Lease It Shull be ruyuirud or permitted shut uulice'ur dcmund be given or served by either party to this Lease to or us' lilt other, such notice or dama id shill not be daunted duly given or served unless in writing, and either personally delivered or furwaidtd by rcgslered or ccrtilied mail, postage prepuld, addressed its set firth on'Pugc Two berour. Notice time pirlud begins upon signed ruccipi by either party. THIRTY-TWO. HAVE AND HOLD. The Landlord covenants that the Tenatu, upon puying site runts hureln reserved, and performing the eovenanls and agruomanty hereur Shull pcuauubly and quietly have, hold and enjoy the Demised Prundsus unit lilt righls, cpsemunls, appurtenances and privileges bclunging or in anywlaa appertuiniog thereto fur the uses and purposes set forth hureln, during the full term of this Lcusc and uny extensiun or renuwal Ihercof, subject nevertheless to the terms or this Lease and to any murtgugc, deed of trust or usher security Instrument to which the same Is subordinated. The cuvenwlls and agreements contained in she fureguing Leese arc bbsdtog upon ilia panics haretu and Ihair respective hairs, executors, udminisirulurs, successors, legal representatives and amigna. I'11114TY-THREE. REMODELING. Tunisia understands that the Landfurd may, but shall not be ubligutud lo, cicct'tu construct improvements to the Shopping Cattier, such as canupics, sidcwuika, parking signs, lighting, pylon signs, landscaping, shrubbery, traffic control devices, striping, and other capita) Impravetnents in is suit discretion. In chi: event that Lmsdlurl should undertake this type of IniprGvemenl to the Shopping Center, ilia Tunisia ugrccs to pay Lundlurd during the term of this Lease Agreement a sum which shall be liacd of an amount equal to live cants (5.05) per square fuul for the Demised Prcndscs per month, commencing on ilia lirw day of ilia mumis following the completion of uny or all such Improvements. Said sums shall be due and payable in equal monthly bnsullutcnss lit advance in the way and manner specified, but such additional puymenl shall nut be decmed to be •a part of she "guuruntcud minimum real" or "percenluge rental" us these terns may be used attd act forth elsewhere in Ihis Lease, our shall such payments be deemed purl of any sums due pursuant in Puragraph Nine, Ninctven, or Twunty-Six hurtul'. Tenunl understunds that us a result of such Improvements or renovations, 11 may be nccclury to eliminate or relocate the outdoor sign of Tenunl. 'fmant agrees that, If ruipsmud,'11 shall rcnwve, relocate and/ur repiwee sold sign at'hs own cost and expense to the locution designated by Landlord upon L•andlurd's request. Lundlyrd may request shut Tenant supply and pry for at Its own expense a new exterior sign. Such new sign shall be dcsiLnud, lubricated and Inslulicd in uccurdance with crilerlu and specifications to be supplied by Landlord and ahuil be subject to she prior written approval of Lundlurd us herein required. In the event the overall design udupied by Lundlurd incorporates signs or Idenlificu6un ponds for the individual Tcnunt, the Tenant ugrccs it shall puy to the L•andlurd its share of such sign lit be crecled, based on a pro rule share thereof. - 11 is expre» ly understood and ugrued by Tenant, however, thus nutting in this article shall ht uny otanner be dcumcd or construed to be on obligation of Landlord to underlake'atty or all auclt work. Landlord agrees shut upon its election to perform any of the work herein, it shall be periurmed in such a wuy so us not to Interfere with the conduct of Ilia Tenant's ordhtury busWcss at she Demised Premises. THIRTY-FOUR. SUBMISSION OF LEASE. The subtul%Ain of this Lease fur examination dues not conslilute an offer to Lease, and this Lease becomes effective only upon the exeeulims thereof by Luttdlord and Tcnunt. Upon ilia execution of this Lcusc by the Tununt, the Lundlurd is granted by Tenant on option on sbc part of the Landlord for thirty (30) days to execute and complete this Lease. Said option may not be withdrawn during said shirty day period. If Lundlurd shall not execute this Lease within said period and immadluNly thcrcafler return u fully i executed copy to Tcnunt, the Tenant may withdraw its offer hereunder. THIRTY-FIVE. DELIVERIES. Tenant shall load or unload all merchundisc, supplies, fixtures, equipment and furnitureand cruse the collection of rubbish only through the rear service dour or dears of the Demised Premises. No deliveries of uny kind shall be made through the froul entrance. No delivery vehicle shall park afung the curb of the Shopping Center between the hours of 10:00 a.m. and 9:30 p.m, or in any area marked "No Loading". No delivery trucks or other vehicles servicing the Demised Premises shall park or ulherwise remain upon the parking facilities of the Shopping Center offer 10:00 A.M. of each day. The -Landlord reserves The right 10 further regulate file activities of the Tenant In regard to deliveries and servicing of The Demised Prcmises; and Tenant agrees to ubidc by'such further regulations of Landlord. - TIIIRTY-SIX. RECORDING OF LEASE BY LANDLORD. Landlord, may whenever Landlord deems It necessury, record this; Lease unit abstracts and memoranda thereof, whether required or permitted by law, in whatever f Stales or jurisdictions in which the some is recordable, at Tenant's sale cwt and eapense (including, but not limited lu, the recording fees, taxes and all other costs unit expenses of recordation), which Tenant shall pay to Landlord I immediately upon such recorduliun; and further, Landlord shall have such right of recordation notwithstanding uny recurdasiun, If •uny, of this Lease or any abstracts or memoranda thereof by Tenant, or •uny other act of Tcnunt. TIURTY-SEVEN. POSSESSION. If Lundlurd Is unable to tender Tenant pussessiun of the Demised Premises as herein provided, by reason of the holding over of a previous occupant or by reason of uny other cause beyond lite control of Landlord. Landlord shall not be liable to the Tcoanl therefor and during the period that Landlurd is unable `. 10 give possession, ull rights, remedies and obligations of both parties hereunder shall be suspended. Should the Commencement Dale not hove occurred In uccurdunce.with the applicable pruvlsiuns of this Lease within three (3) years from life dole hereof, the Lease shall be deemed Ipsu fucto, null and void, of no force and effect 'i 17 between the parties, and built Landlord and Tcoaal shall thereupon be relieved and released from ell obligations and liability hereunder, It being the sole intention of the parties hereby to prevent this Lomas: fro.n becoming void or voidable by virtue or any rule against perpeluilles pravalling in be jurisdlellon wherein the Demised Premises are shuulu, nothing hcruin contained to be deemed or construed to otherwise permit or justify for any rcawn the postponement of said Commencement Date. If Tenum Shull enter the Demised Premises prior to the term hereof, Tunum ahull be liable us hervin set out unit such Occupancy shall be upon the terms and conditions hereur weep, that real shall be due at the time but forth In Paragraph One hereof. Such prior occupancy shad) he ul the sole risk of Tenant. '1'Iltit'rY-EIGHT. AGENCY. In negotiating unit execulhng this Louse, Agent is ucliug us Agent only, and shall in no event be held liable to Landlord or to Tenant or to any ether puny for the terms, cuodhiuns, I - ullillnnunt or aunfullillmunl or any of the terms, covenants and/sir cundilluns of this Lease, or for any uctiua or proceeding that may be taken by Landlord uguinsl Tenunl or by Tenant uguinst Lord or be or on behalf or tlnruuuh either ill' them or any third puny. h. TIIIRTY-NINE. LIMITATION OF LIABILITY-LANDLORD. In the event Mal the Landlord may he or elect to Wf ur to adapt line form of allmiled or gencrul purincrship or of u Red Estule invesbncul Trusl; lununl agrees that the TenatR shall (whether general or limited) not file a claim uguinst oily partner pcnunully or against any trustee thereof by reraon of any mutter arising under the terms of Ibis Lease or arising in connection with the use or uccupwncy of the Dcmisud Promises, but shall look solely to the Eslule and properly of llte Landlord In lhix Shopping Collor us slated In Paragraph 29. No pcrsunal asset or any partner (ucocrul or Hustled) In such partnership or or any trustee bf such Real Estate Investment Trust shall he subject to levy, execution, ulluchmcnl or other enforcement procedures by Tenunl or any successor or assign of Tenunl on account of uny matter whatsoever relating Its this Lease or Its Ihu use or occupancy of the Dcmbied Premises. Consistent with the Intention expressed In the Immediately preceding paragraph, unit notwithstanding anything to the contrary In this Lease elsewhere set forth, either expressed or Implied, Tcaum agrees that In all events it shalt look solely to lite estate and properly of the Landlord (regardless of whether the entily is a corporation, partnership, bust, individual or olhcrwiac) In the shopping Center for the collection of any Judgement (or other judicial pruceas) requiring puymenl of money by Landlord In the event of •a default or breach by Laudlurd with reaper a usiy of etc terms, covenunts and conditions of this Louse to be ubservud and/sir performed by Landlord, and sits sillier property tsr uascls or Landlord shall become subject to levy, executiun, •allachnnenl or other cafurecmcni procedures fur the satisfaction of Tenunl's remedies. If the building Is transferred or conveyed, Landlord shall be relieved of oil euvenunis and ubligulluns under this Lease thereafter occurring and Tenant shall thereafter look to such transferee for the pcrfurnnunce and observance Ihcrcur. ' FORTY. This lease is grwnled'upun Ibe uxprc» condition Thal Lusace and/sir lite uccupunts of the prumbcs hurehn leased, shall nut conduct Ihemaclves is •a manner which the Lessor in its sole opinion muy doom Improper or objectionable, and Thal if sit any time during file Iona of this lease or any umcntiun or cunilnuallun thereof, Lessee at any occupier or the said premises shall have conducted himself, herself or thcrosclves in u manner which Lessur In its sole opinion deems Improper or ubjccllunable, Lessee shall be wken Its have broken the ,covenants and conditions of Ibis lease and Lessor will be unlildcd to all of the rights and remedies grumud unit reserved heroin, fur the Lessee's failure to observe any of the euvenants and conditions of this lease. FOURTY-ONE. Lessee agrees Out from time Its little, within len (10) days after Lessor's written request, Lessor will execute, acknowledge and deliver to Lesser a ualement certifying to such resunuble Information regarding this lease fix Lessor may request, includindg, without limitation, the commencement unit expiration dales of the term of this lease, that this lease is unmodified and in full force •rnd effect (sir if there have been niodifncalions, that it is In full force and effect its modified and sluling the mudilical)uns), Ihu dates to which minimum runt, uddiliunul rent and ell other sums unit charges due hereunder from Lessee have been paid, unit stating whether or not to the knowledge of the signer of such certificate, Lessor is In default under this lease (will, if so, specifying each such default of which signer has knowledge). The tenant acknowledges that It bus examined the demised premises and ugrees to accept the sane without any representations, warranties or covununtrs on the part of the landlord and in the condition commonly referred to as "as is". , , I . is l , 1 SS000N FOkTY-0NN IWVWUNMWRAL CDN=aAnUNS I. DeRplUoas For A- "Environmental ROJASO": The term EnVIC04MORW Ralauso shall mean purposes of this Section Forty of thte Lease, the folfowhhjr aernloons shhall apply: puurl if. nit lair, empty ng,dlschargin6, nlecUn6, Heapin6.leachny. disposing, ahWlduninL. discarding oradu aping of ally Toxic Substance from, on, Into or about the Deodsed Premises or the shopping Center. S, "Shopping Conger": The term Shopping Centel $hW mean the larger premises of which the buuised Promises as shown Oil Exhibit "A11 and allZeA bares Is a part C. "Municipal Wase% The term MuolClpal Waste shelf have Me Meaning set forth in tine I'aunsylvanla Solid Waste Management Act, 35 P.S. $6018.103. D. "RanedlaUon"; Activities In connecdom with the clean-up of on 6uvlrunmental Release, Including but not IhmRed to sampling, analysis, excavation, removal, disposal and replacement of sells, ground water under baler materials, lm accordance wild th E. "Remedlation e provisions of all applicable laws, ordinances and regulations, now or hereafter enacted. Ilia Envir nmental Release wl ich shall be prRdMddJ&UG4 Plan epared by an nyhoueablaga written pilot to nd ongbmnr accepnble affect to LandlordtldlaUon of the F. "Toxic Substance": The term Toxic Substance shaUAloaa A "hazardous subsiance," "pullutam." or "cunuunnamt," as such forms are now or hereafter defined In all applicable federal, state, and local taws. Ordinances or regulaUons now or hereafter a ucfed or antemod, and any and all other germs which are or may be used n any or all applicable l' llvh'ehmnlnlal laws now or horualler enacted to dorlne prohibited or regulated substances. 2. Tenant shall title use t Uellased Proullses or any part Uhureo, or the Shopping Center, or ally p;li't ulureuh, lot* the purpose at treating, producing. handling. Uuasrrring, processing, transporting, disposing, using or sturmig it 'i'uxie Substance. 3. 'Pomant lulu Its agents, empluydes, contractors, licensees and hlvttuus Shall net cable ar licnnll to exist, as the result tit IntenUoual or unintentional ucUoo or emission by aria or more of Diem, at Eavirounumal Release. d. Notwithstanding the foregoing, Tenant may use normal aneumm of claumng materials and uihcu supplies lit Ulu ordinary eulhrse all 1'dnamrs business lit reasonable quanUties slid provided we same art- usud, startle ;lad disposed all n ceniplneed with all applicable Lowy, oreau cox and regulations, as now or hereafter unaclua. 5. Tenant shall diSpose, remove and/or arrange for tine disposal and/or removal of its Municipal Waste by u necabed Municipal Waste m'ansporlur or Municipal Waste disposal company approved by Lumdlurd. and which shall be upur lud tit aceurdaucc with applicable laws, ordinances and regulations. Tenant and its agents, employees, cuuraclurs, hcenseus auh Imvileus shall not place or penal ilia plueeuiont of any Toxic Substance ill ally wastu receptacle lucanla in Uhe Uellllsed Promises or Ulu Shopping Caller, or Via plumbing or sower systems of Ulu bninisud Prunises ar' the Shopping Cuuter. 6. It ah Ruvirun lunial Release Is caused by Tenant as slated in subparagraph 3 ahuvu: A. Tuemt shut[ prumptiy floury Landlord and.all any govenunemtel agencies required by law to be muVaud; and disclose au schedule apdrodetaileduipUy neacuviU s which shall Include iuurmaluuu las ilauuiur id may requiesl. Including., (I) :I plan for Rumudndou which shall Include all courses of action as may be necessury a ubmn it caruhealiui from the Cu uounwcalUa of Pamisylvanla, Department of Euvirodmomlal Rusuurucs slid the Federal Envhrunmcuhd Prulucnun Agency, aua any other appropriate local agency, dial the Uendsed Proudsds outlier Shuppng huller have been rumncdiatud his I accordance win all applicable laws, ordinances and regulations, slid to Ulu sauslacuun of Uluse agcucles; (it) reasonable l salary muasurus; (Ili) :1 plan to avoid hltererance Willi Lite operation of Ulu Shopping Center, ur as conduct of business Uluren, rid; (Iv) a plan to restore the Uumised Premises and/or Shopping CeU1u' tuuul cundiUuo leaisbng r prlgr to Wu Environmental Release, Including Um replacing or soils, landscaping, regrading, repaving and repalrng Ulu ?. imprbvenons. Tonaut shell mudlfy the liemedlaon Plan as requdsted by Landlord. C. Landlord any, in Its sole discretion, (1) undertake all or part of ilia Remediauun, at Temalfs sole cost, or (it) rmtulrC that Tenant eke all steps necessary to promptly ramediala all or part of Um Environmental Release. in accordance with Ina Remedla ion Plait, which shag be performed by eavlronmental professionals approved by Landlord. Tenant shall, upon the request or nu Landlord, deposit With Landlord 125% of the cost of performance of tha Rmnddiatiun Plan, as reasonably estimated by Landlord. Portions of the amount deposited with Landlord may, train Wine to Und, be released by Landlord to be applied to ilia cost of performance of ilia Remomation Plan. 0. Upon raeelpf. Tenant shall bmmedialely submit m Landlord true and complete copies of any correspondence between Tenant and any regulatory agency, Concerning matters arising out of or elaog to an Euvlroamunial Release. In addition, Tenant shall keep Landlord fully Informed of Its progress n complying WIN Its ObUgaUons under Nis Section Forty of this Lease. E. Landlord shall have the opportunity te parUcipata with Tenant In negotiations with any governmental authorities Involved in the ReedlaLlon, loading to Me Obtaining by Tenant or s certification from such governmental agency tom Tenant has remadlated the Eavlroameotal Release to the sadatacUoa of such agency. P. Tenant shelf obtain a cerUDcaUoa from the Commonwealth of Pennsylvania Department of Environmental Resources and the Faddral Environmental Protection Agency, and any appropriate local agency, certifying Mat Tenant has performed and sutisfaetorlfy completed the Ramadladea In accordance with all applicable laws, ordinances told regulations, a copy of which shall be promptly delivered to Landlord. G. Tenant shall be responsible for the cost of repair or replacement of any part of ilia em or and the fixtures, egWpeal, personalty, and Installations Meraon and Margin, p cessitatedebyPrea onsof Wine Shopping Ramedladon. 7. Tenant shall comply With all Applicable laws, ordinances and regulations of all governmental auUtorlUes, as mow or fter enacted, and shall be solely Incluading but not UmRad to emedla ion,sstructural oraovaUons,sor cessation oof activities necessary to comply with such laws, ordinances, said regulations. 8. If any cerdOca ton required In Section Forty shall not be obtained prior to the expiration or earlier termination of this 19 % we ? Premises, Including but not limited to Remediullon, structural renovations, or cessation of activities necessary to comply with such laws, ordinance's, gild regulations. 11. If any ccrtificaliun required in Section Forty shall not be obtained prior to the espiratiun or uarlier Icrminaliun of this Lease, then 411111 such certification Is obtained, Tenanl shall be responsible for and shall pay to Landlord an amount, for each day, cquai to one-Ihrce hundred slaty-fillb of The aggregate of the highest amount of Minimum Annual Real and Additional Rent payable by Tenant in any Lease Year during the five (S) year period immediately preceding, diminished by any rent or other revenues received by Landlord by reusun of the occupancy of the Demised Premises during such period. 9. Tenant represents and warrants Ihal the plans and spWilculluns to be submiuud to and/or heretufare submllied and approved by Landlord fur the construction, decoration, Improvement and/or renovation ul' the demised Premises are In conformance with all applicable laws, urdinances and regulations of all guveranicalal authorities. Tenant shall, prior to commencement of construction, obtain all licenses, permits unit approvals necessary fur cunstruutlun of the Demised Premises pursuum to the plans and specifications approved by Landlord, and for the uperutlon of the Demised Premises us contemplated by this Lcasu, Including all land development requirements. All cumtructlun wort. performed by Tenant or Its eunlruclurs shall be In accordance with applicable laws, urdlaunn:s and regulations of the governmental authorities having jurisdiction thereof. i Ill. Esrept as otherwise allowed or provided herein. Tenant shall not use any Toxic Substance on the Demised Premises or the Shopping Conger, other than those substances, listed below, which shall be stored In appropriate safety or protective cuutulncrs unit disposed of In Ihafollowing umuuhls and frequencies in accordance with oil applicable laws, ordinances and regulations (If no Ilsling Is Included hereunder, all such use shult be pcnnillud or allowed under uny circuroslancus): - TOXIC SUBSTANCE USED STORAGE METHOD DISPOSAL METHOD AMOUNT DISPOSED EPAIDER PER MONTH GENERATOR I.D. NUMBER (if applicable) Tenant shalt give prior written notice to Landlord of may proposed changes in the above scheduic, unit within dtirty (30) days ulier L'andlord's receipt of such notice, Landlord may approve or reject such prupuacd change, in its sole discretion. I I. The covenunis, representations gild warranties provided herein shall survive lite capirutian or curlier tcrndnudon of this Lvaso. 12. Tenant shall puy, defend, Indemnify, unit hold hurmless Landlord from wild aguinsl any gild all cluing, lases, costs, ilamuges unij liabilities arising from or regaling to Environmental Releases, RmncdBwtiun, or ate failure of Tenant, or its agents, employees, contractors, licensers or invllces to comply with the pruvisiuns of this Section Forty. R d Will EXHIBIT "B" STANDARD SPECIFICA'rIONS L Landlord Rcspunsibility F.nIruny Aluminum narrow stile with slandard'hardware- Sloss and sidelights SlaslnS (/q" clear Blass tempered in doors and . Aluminum fruming- glass 1/4" clear ltc"r D1,11" v Lu • (If uppllcuble) 7'0" x 7' or 7'U" s Wil" tiulluw Inclul with lucluml, woulherstrip, Ihresbuld, dour with nun-r and hulls. cnnovable pins Interior Ftntvb .f •mlvnng • •dl 1/2" or 5/S" drywall taped and sanded to receive paint or wall covering (except fur rear wall). . r l;JWDIIII IB'B" high 2's 4' suspended. FJiwt .: ': J, 4" concrete stub on grader Elceirleld bliniolu l service as required by slate and lucal cud- (100 AMP). Eli' signs as required by stale and local code. Ogle (1) duplex outlet per every one hundred sixty (160) square 1'991 of leased fluor area. One (1) combination Ilghl/fan fixture bathroom. One (1) drup4a 4-lube fluorescent Iighl fixture per every ninety (90) square feet of leased hour area. One (1) 6-gallon electric water healer. Plumbing Restroums- One (1) water closet, flour mounted with seat and all trim. One (1) lavatory wall hung vitreous china with all trim. IIVAC Heating- Gas fired (If available) rooftop uolls- 4U BTUs per square fret of leased flour area. Air Cundllluning- Electric- 1-tun cooling per three hundred fifty (350) square feel of leased fluor area. All heallaWalr conditioning ducts (InsWated), diffusers, and controls. 11r Tenant Responsibility MILMLIcy LI¢hdng- If required by State and/or Local Code Any Additional Flni•h not listed above 21 r i ; ' ' I li, A. GENERAL EXHIBIT "C" 'SIGN CRITERIA 1 e • • , 1 • 1. 1. TENANT Is required to identify Its premises by u sign, which It shall furnish and Im4WI at Its awn expense. Signs shall meet the Sign Crllcria us outlined herilin unit shall be approved by local authurilles, which approval shall be obtained by TENANT and ut its expense. Any sign which dues not conform or Is Improperly nntnufuclured and/ur Installed. Shull be removed at TENANT'S expense. 2. Ali signs shall be individually lettered unit Internally Illuminated as outlined lit this Exhibit. Signs shall have Underwriter's Laboratories' label of approval an W1 pans and completed display. 'r. B. SIGN CRITERIA • EXTERIOR 1. Thu sign shall be located on the exterior facts, us determined by the LESSOR. 2. Sign wordage shall be limited to the store name only, an a single line. 3. The use of logos or insignia (which shall nut exceed the average height of sign letters) may be permitted, subject to LESSOR'S approval. 4. The maaimum height of sign letters or components shall nut exceed 36 Inches. The length of the sign shaU nut exceed tlB percent of the sture front. The length of the sign shall be centered over the store from. S. LESSOR shall provide wiring for one (1) 120-volt circuit only to building ILclu. Cut[ unit installation of additional circuits will be the responsibility of TENANT, 6. A dululled description of design slundurds Is alluched hereto us C-.4. C, SIGN APPROVAL 1. No sign shall be erected until written specifications and drawings for said sign are approved in writing by LESSOR. 2. TENANT shall submit to LESSOR three (3) sets of all sign drawings and specifications which shall show the locution of the sign on the buildings, the size, construction matorluls, colors, script, alluchnicht dewlls, eluciricul lard requirements, brightness, In-foul houborls and nume, address and phone number of sign manufacturer/Installer. 3. LESSOR shall return to TENANT one set of such signs plans within.fi_ficen (IS) drys, with suggested mudifieatiomt or approval. ' D. INDEMNIFICATION BY TENANT TENANT shall, al its own risk and expense, erect said sign and maintain sign in a good stair of repair. TENANT hereby agrees in indemnify LESSOR against unit save LESSOR harmless from any lass, cuss or damage resulting from the erection, maintenance, existence or removal of said sign and further agrees to repair, at its sale expense, any damage which may be caused by the erection, maintenance, existence or removal of such sign. Upon vacating the premises, TENANT agrees, at Its sale expense, to remove all signs and repair any and all damage caused by such removal, within thirty (30) days of vacating premises. • . 22 M ? e • r4 EXHIBIT C-A DESIGN STANDARDS SIGNS 1. All signs shall be comprised of individual Iettefs. Sign letters shall have moral sides and back made of .140 gauge aluminum 0313 Durk Bronze Duranudic nolsh with minimum onc-eighth (118") acrylic plastic faces, with trip cup edging lu match aluminum. These letters are to be mounted directly to the (rout cmtupy with nun-currusive fustuners. All unuchmcut devices shall be concealed Inside the letter casing. 2. Secondary wiring and transformers shun be housed In mclul, conduit cunceaied behind the canopy facia. No open , wiring is permitted. 3. Slga letters nut exceeding two and three-quarter inch (2 3/4") stroke shall contain not more than two (2) rows, nor less than one (1) row, of 12 mm. ncun Iubing. 4. Sign letters not exceeding four Inch (4") stroke shall contain not mure than four (4) rows, but not less than two (2) rows, of l2 mm. neon tubing. S. The color rendition of noun tubing shall be coordinated with the color of the translucent plastic face of the sign letter, No exposed tubing or lamps will be permitted. 6. All 12 mm. mercury-filled neon Iubing shall be controlled by self-contained U.S. approved 60 MA. H.P.P. 1216vult transformers (as many as may be required). 30 MA. transfurmers may be used with urang?, copper or red tubing only. 7. Tcaunt's sign contractor shall connect sign to wiring provided at a designated location behind exterior fuciu. S. No exposed conduit, junction buses or ragewuys permitted. 9. No light Icukuge will be permitted an sides, back or front or letter. 10. Signs shall not project beyond the front face of building facia by more than four (4) Inches. It. All letters within the sign shall be one (1) color when sign Is lighted. Clear, smoked or tinted acrylic faces which' allow fur noun to be seen will not be permitted. 23 r ow OR i Y: 1 s ?? 1 " & . . I a C) - c r. ? He w o ? V U) (U3 r4 > d ca r z H '"? , c -? UG L W W O?w r ca `I. C W 52 rT m6 ? fi u N C O ?a w > O U LL i !, r w a m v i W N !-+ ^mQH few ma 1j N LL O w '' O H U N Fr CL H ooH ] cL' H 1 H LL to [ ? ; w a 0 L) M H v? ? .0 w ! co ? P L c'1 'S , • q . W t - - ' n " H c Ch OU) E4 f 4 c a W w M & f N w? F•1 W d z co rs n r? es SIDNEY BECRER, JUDITH BECRER and WILMA BECRER SHAPIRO trading as LESTER ASSOCIATES, a general partnership, Plaintiffs, vs. ERNEST T. RATSAMPES and GEORGE T. RATSAMPES, both individually and as a partnership trading as T/J'S FLAME-BROILER RESTAURANT and also trading as TUCSON'S SOUTHWESTERN GRILL, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-3533 CIVIL TERM 1999 PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: On June 9, 1999, a Complaint was filed in the above-captioned action. Service of process has been attempted but has not yet been completed. Pursuant to Pa.R.C.P. 401(b) (1), please mark the Complaint "reinstated,,. Respectfully submitted, GATES & ASSOCIATES, P.C. BY: A_wz 4i t? Mark E. Halbruner, Esquire Supreme Court I.D. #66737 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) DATED: September 29, 2000 GA'T'ES R A£:if3OCa:fi'T'1=f3, I'.C:,. :1.01.3 111011111161 IRA, tt1.0I%] LIE1110y 1,11 ., rn (7:17) 73 1--9600 ALrLo'rru':`y F"or. PLAINT:IF'F' P11a:i.ntif'f. IiI-CI<Ic:R E'T' (IL_ Defendant. Y.ATSAMPIKS ET 611... OF SERVICE REF. NO...Hr?H 99•-353::3 I. At the time of service I was at least IS years of acle and not a party to this action, and :I: served copies of (:he. MOT:I:CE,, C:OMPL..AINT FOR BREACH OF' L..E:ASE. AGREEMENT FOR COMMERCIAL F(EAI... PROPERTY 2. a. Party served,, E.RNEST T. KATSAMPES indivi.Cluall.y and as> a Fr<:trt:ru±r<.:>f):i.p i:raCl:i.nq as T/J'S FLAME .PRO.-1:1 fi:R RIE:SIT)URANT and also trading as: TUCSOI,PS SI71.1'T'I-IWf:c,3'T'I_RII fifiaa._L_ b„ Person Served., par"Ly in item 2a„ a. Address" 487 ORTEGA AVI:-I. 115 (business) 111OUNI'A:I:N VIEW, CA 94040 3„ 1 served the party named in it-,em 2 a. by personally delivering the (:L) 0111 10/R8/2000 (2) AT:: IIa02am 4. 'TI-II: "NOT:ICII TO TI-II PERSON SERVED" CON 7'F11:= SUI11111ONS) WAS COMPLETED;: a. as an individual defendant b. as the person sued under Lhe fictitious llama r:rF;; as a partnership trading as 'T'/J'S F'L..A111E-A3RO:I1lii:R RESTAURANT and also trading as TUCSON'S SOUTHWESTERN GRaa...l._ 5. PERSON SERVING: RON GARDINER, C.P.S. a. Fee for Service 1648.1"30 ATTORNEYS' SERVICES UNL_TD. INC. Registered Calif. F^ror_ess Server 4731 WEST JULIAN STREET Independent Cont'rac ta'r or Employee SAN JOSE, CA. 95126-2718 ((2) Registration Ilo. 458 (408) 293-•9110 (3) Cc:)cmty. ara E,. I: declare Under penalty of perjury under the law, of tl California that the foregoing is true:) and C:or'r L., Date. 1.0/30/800(1) SIGNATURE. Jud. Coup. Form, rule 982(a)(23) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of - Q6 (1 C s /t/(f I County of SAM C? (-e,4- ? On _ QQ 1 3 1 20M before me, Date Name W TMO d -OM_--(. •0. -Jw Du. NMW P00AC) ' personally appeared ON GARDINER ? Nve.Plorspnn(q eupemortally known to me-OR-? proved to me on the basis of satisfactory evidence to be the person(s) i whose name(s) is/are subscribed to the within Instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by • his/her/their signature(s) on the Instrument the person(s), or the entity upon behalf of which the person(s) acted, R BRADLEY JOHN CASADOS executed the Instrument. Commission # 1204810 i No!ory Public - CalifOnkll WITNES / ' d ptfcials sal:to Clara County d ? %tv C-r-,'r Jan 10.2003 / OPTIONAL Though the Inlorma8on below is not required by law, it may prove uable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Individual Corporate Officer Title(s): Partner- ? Limited ? General Attomey-in-Fact Trustee Guardian or Conservator Other: Signer Is Representing: TNumber of Pages: Signer's Name: Individual Corporate Officer Title(s): Partner - ? Limited ? General ? Attomey-in-Fact Trustee Guardian or Conservator Other: Signer Is Representing: lop of thumb here , 1•NO. NO. 51107 R. r. CAN T&Fw 14100.e764M ,. u- ?-? }- i': (`- r'.. ! LLI -: i ??r _7771= 7 ` 0017 M,IIMAIQ ROAD; BUl{? tDtl Lamm R ...: SIDNEY DECKER, st &I., : IN THE COURT OF COMMON PLEAS Plaintiffs, I CUMBERLAND COUNTY, PENNSYLVANIA s Vs. r CIVIL ACTION - LAW t ERNEST T. KATSAMPES, et al., Defendants. s NO. 99-3533 CIVIL TERM 1999 PRAECIPH TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned action as settled and discontinued. GATES, HALBRUNER & HATCH, P.C. Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) Date: 7- 7- OV CERTIFICATE OF SERVICE I, Mark E. Halbruner, of the law firm of Gates, Halbruner & Hatch, P.C., hereby certify that I served the foregoing document by first-class U.S. mail to the following: Hubert X. Gilroy, Esquire BROUJOS & GILROY, P.C. 4 North Hanover Street Carlisle, PA 17013 (Attorneys for Defendant George T. Katsampes) GATES, HALBRUNER & HATCH, P.C. Mark E. Halbruner, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 (717) 731-9600 (Attorneys for Plaintiffs) Date: -7 / - _7^ O-1 _ CT; 1 W ??r CJ'- r QC _i J CC) L = 1 ? ii: ` ? hJ -