HomeMy WebLinkAbout99-03891a
1
OWC
Johnson, Duffle, Stewart & Weidner
By: David J. Lanza
I.D. No. 57782
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
LMRES REAL ESTATE ADVISERS, INC., t1a
EASTERN RETAIL HOLDINGS, L.P.,
Plaintiff
V.
THOMAS H. WILLIAMS and
DORCAS A. WILLIAMS,
Defendants
INFESSION OF JUDGMENT
FOR MONEY DAMAGES
CIVIL ACTION - LAW
Pursuant to the authority contained in the Warrant of Attorney, a copy of which is attached to the
Complaint filed in this action, I appear for the Defendants and confess judgment in favor of Plaintiff and against
the Defendants as follows:
Unpaid rent from December 1998 through January 2003 $106,000.00
5 percent (5%) late charge $ 5,300.00
Inter@st at the rate of 1.5% per month from December 1998
through June 1, 1999 $ 10,017.00
TOTAL $121,317.00
Respectfully submitted,
JOHNSON, DUFFIE, STEWART & WEIDNER
By: a? ("'
David J. Lanza
Attorney I.D. No. 55782
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
:123066 Telephone (717) 761-4540
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
6/'C/ 'X%389/ -CIVIL
Johnson, Duffle, Stewart & Weidner
By; David J. Lanza
I.D. No. 57782
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
LMRES REAL ESTATE ADVISERS, INC., t/a
EASTERN RETAIL HOLDINGS, L.P.,
Plaintiff
V.
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, v9- 2dh1 CIVIL
THOMAS H. WILLIAMS and CIVIL ACTION - LAW
DORCAS A. WILLIAMS,
Defendants
COMP HINT PURSUANT TO P- R C o 2grj(W
FOR CONFESSION OF JUDGMENT FOR MONEY DAMAGES
1. The Plaintiff, LMRES REAL ESTATE ADVISERS, INC., t/a EASTERN RETAIL HOLDINGS,
L.P., is a Delaware limited partnership with offices and a principal place of business at 1735 Market Street,
Philadelphia, Pennsylvania 19103.
2. The Defendants, THOMAS H. WILLIAMS and DORCAS A. WILLIAMS, are adult individuals
residing at 26 Bourbon Red Drive, Mechanicsburg, Pennsylvania 17055.
3. On or about November 4, 1992, Plaintiffs predecessor and Defendants entered into a Lease
Agreement for the premises located at Silver Spring Commons, Store #B-7, Mechanicsburg, Cumberland
County, Pennsylvania, a true and correct copy of which is attached hereto as Exhibit "A." True and correct
copies of assignments by which Plaintiff became entitled to enforce the Lease are attached hereto as
Exhibits "B" and "C."
4.
-ease Amendment, a true and correct copy of which is attached hereto as Exhibit "D."
On or about December 16, 1997, Plaintiffs Predecessor and Defendants entered into a
5. Said Lease Agreement (and the Amendment thereto) has not been assigned by the Plaintiff.
6. No judgment on the Lease Agreement has been entered in any jurisdiction.
7. The aforesaid Lease Amendment requires Defendant to pay rent unto Plaintiff in monthly
installments as set forth in Paragraph 5 of Exhibit "D."
8. Defendants have failed to make the required monthly rental payments from and after
December 1998.
9. As a result of Defendant's failure to make the monthly rental payments, the remaining monthly
payments (through January 2003) have become immediately due and payable.
10. Pursuant to Paragraph 1.1(H) of the aforesaid Lease, Defendants are required to pay taxes,
insurance, and common area maintenance charges in the amount of $360.00 per month.
11. Defendants have failed to pay any such charges from and after December 1998.
12. Pursuant to Paragraph 14.6 of the aforesaid Lease, Defendants are required to pay interest at
the rate of one and one-half percent (1.5%) per month on any unpaid amount.
13. Pursuant to Paragraph 14.6 of the aforesaid Lease, Defendants are required to pay late
charges in the amount of five percent (5%) of the unpaid rent.
13. There is justly due and owing to the Plaintiff from the Defendants on account of the aforesaid
breach the sum of One Hundred Twenty-one Thousand Three Hundred Seventeen and 00/100 Dollars
($121,317.00) calculated as follows:
2
Unpaid rent from December 1998 through January 2003
5 percent (5%) late charge $10,000.00
Interest at the rate of 1.5% per month from December 1998 $ 5 5,300.00
through June 1, 1999
$ 10,017.00
TOTAL
$121,317.00
14. Plaintiff has demanded the aforesaid sums from Defendant, but Defendant has neglected and
refused and continues to neglect and refuse to pay the same or any part thereof.
WHEREFORE, Plaintiff demands judgment against the Defendants for damages in the amount of One
Hundred Twenty-one Thousand Three Hundred Seventeen and 00/100 Dollars ($121,317.00), plus costs and
interest from June 1, 1999, and such other relief as this Court deems just and appropriate.
Respectfully submitted,
JOHNSON, DUFFIE, STEWART 8, WEIDNER
By: Dowd J
Lanza
Attorney I.D. No. 55782
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
Attorneys for Plaintiff
:123066
I, J ° ^ , S t a e d ( n,? r' do verify that the statements made in the foregoing Complaint
are true and correct to the best of my knowledge, information and belief. I understand that false statements
made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities.
Dated:
LMRES REAL ESTATE ADVISORS, INC., t1a
EASTERN RETAIL HOLDINGS, L.P.
l n
By:
i
Exhibit A
SILVER SPRING COMMONS
SHOPPING CENTER STORE LEASE
INDEX TO LEASE
- To -
2s T
n i I1
THOMAS H. WI LIAMS AND DORCn A OiIL T M
ARTICLE
ofi
SECTION CAPTION
1.
Section 1.1
1.2
1.3
1.4
1.5
1.6
II.
Section 2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.11
III.
Section 3.1
3.2
3.3•
3.4
3.5
3.6
IV.•
Section 4.1
4.2
4.3
V.
Section 5.1
5.2
5.3
5.4
VI.
Section 6.1
6.2
6.3
GRANT AND BASIC TERMS .....................
Basic Data ................................
Construction of Demised Premises..........
Demised Premises ..........................
Acceptance of Demised Premises............
Term of Lease .............................
Option to Extend ..........................
RENT......................................
Annual Minimum Rent .......................
Commencement of Rent and Other Charges....
Taxes ....................................
Common Area Maintenance Charges...........
Adjustment of Minimum Rent ................
Percentage Rent ...........................
Gross Sales ...............................
Record Keeping ............................
Audit .....................................
Late Charge* ..............................
Definition of Additional Rent .............
USE OF DEMISED PREMISES ...................
Tenant's Use ..............................
continuous operation ......................
Radius of Operation .......................
Utilities .................................
Signs.....................................
Sewer Discharge Limitation ................
COMMON AREAS ..............................
Definition of Common Areas ................
Common Area Operating Costs ...............
Control of Common Area....... .....
CONSTRUCTION AND ALTERATIONS ..............
Landlord's Construction ...................
Tenant's Alterations ......................
Builder's Risk..... :......................
Tenant's Discharge of Liens ...............
MAINTENANCE AND REPAIRS ...................
Landlord's obligations ....................
Tenant's Obligations.. ...............
Surrender of Demised Premises .............
GE
1
1
2
3
3
3
4
4
.4
5
5
7
7
7
B
9
10
3.0
10
11
11
12
12
12
13
14
14
14
14
15
15
15
15
16
17
17
17
17
19
VII.
Section 7.1
7.2
7.3
7.4
.7.5
7.6
7.7
7.8
VIII.
Section 8.1
8.2
8.3
8.4
8.5
IX.
Section 9.1
X.
Section 10.1
10.2
10.3
10.4
10.5
XI.
Section 11.1
XII.
Section 12.1
12.2
12.3
12.4
XIII.
Section 13.1
13.2
' XIV.
Section 14.1
14.2
14.3
14.4
14.5
14.6
XV.
Section 15.1
XVI.
Section 16.1
16.2
16.3
XVII.
INSURANCE AND INDEMNITY ...................
Casualty Insurance ........................
Waiver of Subrogation..... .........
Increase in Fire Insurance Premiums.......
Liability Insurance.. ..........
Business Interruption Insurance...........
Indemnification of Landlord ...............
Plate Glass ...............................
Landlord's Mortgagee ......................
SUBORDINATION, NOTICE, ESTOPPEL AND
ATTORNMENT .............................
Subordination .............................
Notice to Landlord ........................
Estoppel Certificate ......................
Attornment ................................
Assignment of Rents .......................
ASSIGNMENT AND SUBLETTING ................
Consent Required ..........................
WASTE, GOVERNMENTAL AND INSURANCE
REQUIREMENTS AND HAZARDOUS SUBSTANCES..
Waste or Nuisance .........................
insurance Requirements ....................
Hazardous Substances ......................
Government Permits ........................
Survival ..................................
ADVERTISING AND PROMOTIONAL PROGRAM.......
Advertising and Promotional Program.......
DESTRUCTION ..... ...:......................
Total or Partial Destruction.........'.....
Partial Destruction of Shopping Center....
Tenantfs Restoration ......................
Substantial Damage ........................
EMINENT DOMAIN .............................
Condemnation .......................... ..:.
Restoration of Demised Premises...........
DEFAULT OF TENANT .........................
Default ...................................
Remedies ..................................
Additional and Percentage Rent............
Guarantors ................................
Bankruptcy or Other Default ...............
Failure to Pay, Interest ..................
ACCESS BY LANDLORD ........................
Right of Entry... o ........................
TENANTIS PROPERTY .........................
Taxes on Leasehold... ........
.....Loss and Damage.... .......................
Notice by Tenant ..........................
HOLDING OVERT SUCCESSORS ..................
Holding over ..............................
.19
19
20
20
20
21
21
21
21
22
22
22
23
23
24
24
24
26
26
26
26
28
28
28
28
29
29
30
31
31
31
31
31
32
32
33
36
36
36
38
38
38
39
39
39
39
39
39
q! ?
VIII.
Section
XIX
Section
XX.
Section
17.2
18.1
19.1
19.2
19.3
19.4
19.5
19.6
19.7
19.8
19.9
19.10
19.11
19.12
19.13
19.14
19.15
19.16
19.17
19.18
19.19
19.20
19.21
19.22
19.23
20.1
20.2
20.3
XXI
Section 21.1
21.2
Successors and Assigns ................ :...
QUIET ENJOYMENT ............................
Landlord's Covenant .......................
MISCELLANEOUS .............................
Waiver ....................................
Accord and satisfaction ...................
No Partnership ............................
Force Majaure .............................
Landlord's Liability ......................
Notices and Payments ......................
Financial Statements ......................
Guarantors ...............................
Captions and Section Numbers ..............
Definitions ...............................
Partial Invalidity ........................
Recording .................................
Entire Agreement..... ......................
Survival ..................................
Applicable Law ............................
Consents and Approvals ....................
Authority .................................
When Lease Becomes Effective ..............
Interpretation...... ......................
Brokers ...................................
Landlord's Fees and Expenses ..............
Other Agreements ...................•.......
Shift Clause ..............................
SECURITY AND RENT DEPOSITS ................
Amount of Security Deposit ................
Use and Return of Security Deposit........
Rent Deposit............. ..................
TENANT COVENANTS EASEMENTS ...............
Tenant Covenant ...........................
Easements .................................
EXHIBITS:
A. Demised Premises
B & B-1. Landlord's Work
C. Percentage Rent Statement
D. Rules and Regulations
E & E-1. Sign criteria
F. Tenant's Work
G. Lease Assignment Agreement
40
40
40
40
40
41
41
41
41
42
42
42
42
43
43
43
43
44
44
44
44
45
45
45
46
46
46
47
47
47
48
48
48
48
S
• ?SlL 'RI A? Y??y ?I J Y -jr ? ,
INDENTURE OF LEASE
THIS INDENTURE OF LEASE made as of the day of ,
199_, by and between the landlord named in Section 1.1(0)
(hereinafter referred to as the "Landlord"), and the tenant named
in Section 1.l(A) below (hereinafter referred to as the ("Tenant").
W I T N E 8 8 E T H•
ARTICLE I: GRANT AND BASIC TERMS
1.1 BASIC DATA: The following sets forth basic data hereinafter
referred to in this Lease, and, where appropriate, constitute def-
initions of the terms hereinafter listed.
A. TENANT: Z
Address:
York, PA 17404
B.. TRADE NAME: Bike Line
C. SHOPPING CENTER NAME: Silver Spring Commons
D. DEMISED PREMISES:
STORE#: B-7 WITH APPROX. 2,400 SQ. FT.
E. ORIGINAL TERM LENGTH: Five f51 YRS
F. OPTION(S) 8 LENGTH: one at 5-years
G. MINIMUM RENT:
YEAR(S) 1-_ @ $2,400.00 PER MO-, $28.800.00 ANNUALLY
YEAR(S) 2-_ @ $2.200.00 PER MO., $26,400.00 ANNUALLY
YEAR(S) 3-5+ @ $2,500.00 PER MO., $30,000,00 ANNUALLY
* Year 5 shall be extended so that the initial term
of this Lease shall expire on January 30, 1998.
H. ESTIMATED FIRST YEAR PRORATA CHARGES AT COMMENCEMENT OF
LEASE (SUB7ECT TO ADJUSTMENT OVER TER M OF THE LEASE):
(i) Taxes: $200.00 per mo. $2,400.00 ann.
(ii) Insurance: $ 40.00 Per mo. $ 480.00_ ann.
(iii) Common Area: $ 21 0.00 per mo. $1,440.00 ann.
CA 11 - 9&"00 Totals $360.00 per mo. $4,320.00 ann.
ROM- o Y,Do
Percentage of overall Taxes, Insurance and Common Area
Maintenance Charges ("T.I.C.") payable by Tenant: ± I;.
• To be determined in accordance with section 2.3 hereof.
I. PERCENTAGE RENT: None.
J. OPTION PERIOD RENT: Option Year 1, if said Option is
exercised in accordance with Section 1.6 herein, shall
begin February 1, 1998.
/Mo. Annually
OPTION YEAR 3 $2.600.00 $31.200.00
OPTION YEAR 2. $2.700:00 $32.400.00
OPTION YEAR 3 $2.800.00 $33.600.00
OPTION YEARS 4-5 $2.900.00 $34.800.00
PERCENTAGE RENT: None.
K. SECURITY DEPOSIT: $2.400.00 (1 Month)
L. lst MONTH RENT DEPOSIT: $2.760.00 (INCLUDES T.I.C.)
M. USE CLAUSE: To be used for the sale at retail and
service of bike_sf tness eomioment. and bike-related
and for no other purpose.
N. GUARANTOR(S): N/A
0. LANDLORD: Silver Spring Center Limited Partnership
c/o ABS.Development Company
410 Asylum Street, Suite 215
Hartford, CT 06103
P. REALTOR: DONALD T. WARGO, WARGO PROPERTIES AND LINDA_
SUTTON HIME DAKOTA REALTY (COOPERATING BROKER)
1.2 CONSTRUCTION OF DEMISED PREMISES: Landlord agrees to
deliver a substantially completed store space on or before six (6)
months from the date of this Lease; provided, however that in the
event Landlord's work is delayed or hindered by strike, casualty,
fire, injunction, local governmental action, inability to secure
'materials, or restraint of law, unusual action of the elements, or
any other cause beyond the control of Landlord, then said period
shall be extended to the extent of such delays. Tenant. shall have
the option of cancelling and terminating this Lease by giving
written notice to Landlord should Landlord fail to complete
Landlord's work within the allotted time frame, including
extensions. If terminated, Tenant shall have no liability to
Landlord and any Security Deposit held by Landlord from Tenant
shall be refunded. Tenant's sole remedy, at law or in equity, for
Landlord's failure to deliver a substantially completed store-space
as set forth in this Section 1.2 shall be the termination of the
Lease and Tenant hereby waives all claims for damages, including
consequential and special damages, resulting from Landlord's
.failure to.deliver the store space as aforesaid.
-2-
1.3 DEMISED PREMISES: The Landlord hereby leases to the Tenant
and the Tenant hereby leases from the Landlord, upon and subject to
the terms and provisions of this Lease, the premises (hereinafter
referred to as the "Demised Premises") described in Section 1..1(D)
hereof, and as shown on Exhibit A, hereto annexed and made a 'part
hereof, in the shopping center commonly referred to as Silver
Spring Commons (the "Shopping Center") located in the Township of
Silver Spring, County of Cumberland, Commonwealth of Pennsylvania
and more accurately described on Exhibit A-1 attached hereto and
made a part hereof.
Excepting and reserving to the Landlord the roof and
exterior walls of the building or buildings of which the Demised
Premises are a part and further reserving to the Landlord the right
to place in the Demised Premises (in such manner as to reduce to a
minimum the interference with the Tenant's use of the Demised
Premises) utility lines, pipes, and the like, to serve premises
other than the Demised Premises, and to replace and maintain and
repair such utility lines, pipes and the like in, over and upon the
Demised Premises as may have been installed in said building.
1.4 ACCEPTANCE OF DEMISED PREMISES: It is Landlord's intention
to complete the Shopping Center as planned. However, no rights or
remedies shall accrue to Tenant from Landlord's failure to
construct or lease any other parts of the Shopping Center or from
changes in occupancy, actual or planned. Landlord reserves the
right, without Tenant's consent to (a) change the number, .size,
height (including additional stories) or location of'bulldings and
common areas in the Shopping center; (b) change or modify ingress
and egress routes; and (c) add additional land or buildings or both
to the Shopping Center. Tenant agrees to accept the Demised
Premises "as is", without warranty or representation of any kind,
express or implied, on the part of Landlord, provided Landlord
substantially completes the Demised Premises substantially in
conformity with the terms and conditions set forth on Exhibit B
attached hereto and made a part hereof ("Landlord's Work").
Landlord agrees that for Landlord's Work he will assign to Tenant
Contractor's Warranty, namely one year on labor and material.
1.5 TERM OF LEASE: TO HAVE AND TO HOLD the Demised Premises unto
the Tenant for the term specified in Section 1.1(E) hereof
unless sooner terminated as provided herein, commencing on the
Commencement Date as set forth in Section 2.2 hereof. If the
Commencement Date is other than the first day of the month, the
first year of the lease term shall be extended to include such
partial month such that the first year of the lease term shall end
on the last day of the month in which the first anniversary slate of
the Commencement Date occurs. The parties hereto agree, upon
demand made to the other, to execute a supplemental instrument
expressing the Commencement Date of the term hereof when the
Commencement Date has been determined.
-3-
1
1.6 OPTION To EXTEND: Tenant shall have the option to extend
the term of this Lease for an additional term of years as set forth
in section 1.1 (r) under the same terms and conditions contained
herein except that the Minimum Rent shall be as specified in
Section 1.1(J).• The option to extend is conditioned upon Tenant
during the original or then current term (1) paying monthly rental
and other charges in a prompt and timely manner when due; (2) not
being in default of any portion of the Lease (and there is no event
or state of facts which, with the passage of time and/or the giving
of notice, would constitute a default of any portion of the Lease)
when exercising the option and at the expiration of the original
or then current term and (3) Tenant giving Landlord written notice
of Tenant's election to exercise the option term at least six (6)
months prior to the end of the then current term. There shall be
no further right to extend the term of this Lease.
ARTICLE II: ENT
2.1 ANNUAL MINIMUM RENT: Tenant covenants and agrees to pay
Minimum Rent in monthly installments on the first day of each
month, in advance, throughout the lease term without notice, demand
or offset to the Landlord at the address of Landlord as set forth
in Section 1.1 (0) or at such place as the Landlord shall from time
to time designate in writing. The first such payment is to be made
on the Commencement Date, however, if the First Month Rent Deposit
set forth in Section 1.1(L) hereof has been paid by Tenant to
Landlord as provided in Section 20.03 hereof, then such amount as
Tenant shall have deposited will be credited by Landlord against
any amounts due hereunder for Minimum Rent upon the Commencement
Date. Any fractional part of a month shall be prorated and payable
in advance. Minimum Rent is based upon store location in the
Shopping Center and a general measurement of square footage as
computed below:
(A) END STORE SPACES:
SIDE TO SIDE: Outside exterior wall to mid point of the
adjoining neighboring wall.
FRONT TO REAR: From the front outside wall housing the
glass store front to the rear outside
wall or in the case where stores are back
to back, to the inid-point of the rear
wall.
(B) INTERIOR STORE SPACES:
SIDE TO SIDE:
Interior mid-point of each side wall.
-4-
FRONT TO REAR: From the front outside wall housing the
glass store front to the rear outside
wall or in the case where stores are back
to back, to the mid-point of the rear
wall.
Annual Minimum Rent during the original lease term is as set forth
in Section 1.1 (G) and during any option term as set forth in
Section 1.1 (J). Tenant's obligation to pay Minimum Rent is
independent of all of the other covenants, conditions and
obligations of either party to this Lease.
2.2 COMMENCEMENT OF RENT AND OTHER caA GES: The Commencement
Date, which establishes the date from which the term of the Lease
is measured and upon which Tenant is obligated to pay Minimum Rent,
shall be the earlier of (a) thirty (30) days after Tenant obtains
possession of the Demised Premises from Landlord; (b) thirty (30)
days after Landlord notifies Tenant in writing that the space is
substantially complete and Tenant may install fixtures and
improvements; or (c) the date that the Tenant first opens for
business in the Demised Premises. "Substantially complete'' as used
herein means the work performed by Landlord as described in Exhibit
"E" has been completed with the exception of minor items which can
be completed without material interference with Tenant's
installation of fixtures or improvements. Upon occurance of the
Commencement Date, Landlord and Tenant shall execute a Supplemental
Agreement setting forth 'the Commencement Date. ,Notwithstanding contra
ry, Add t onalo R nit edshalli be to
abated for ninet imp ant' but a not
Commencement Date. Y (90) days after
2.3 TAMES: From and after the earlier of (a) thirty (30) days
after the date that Tenant obtains possession of the Demised
Premises from Landlord, (b) thirty (30) days after the date that
Landlord notifies Tenant in writing that the space is substantially
complete and Tenant may install his fixtures and improvements (the
"Delivery of Possession"), or (c) Tenant opens for business in the
Demised Premises, Tenant shall pay to Landlord as Additional Rent
its proportionate share, expressed as a percentage as set forth in
Section 1.1 (H), of Real Estate Taxes, -special taxes and
assessments for the Shopping Center or any part thereof (as the
same may be increased or diminished from time to time during the
term of this Lease), excluding any taxes separately charged to or
levied against Tenant (which Tenant shall pay 100%) or any other
tenant (which Tenant shall not pay any proportion of). The
"Delivery of Possession" as used herein shall be the earlier of (a)
the date that Tenant obtains possession of the Demised Premises
from Landlord, or (b) thirty (30) days after Landlord notifies
Tenant in writing that the space is substantially complete and
Tenant may install his fixtures and improvements.
71. J
Notwithstanding anything to the contrary contained in
Section 1.1(H) hereof, "Tenant's proportionate share" is a
fraction, the numerator of which is the gross leasable area of the
Demised Premises and the denominator of which is the gross leasable
area of the Shopping Center as of the first day of each applicable
tax year during the term hereof, provided that if the taxes for the
Shopping Center are increased materially because of assessment of
Tenant's improvements at a higher rate than other tenants, Tenant
agrees to pay any such excess taxes as Additional Rent. Tenant
shall pay such Additional Rent applicable to Real Estate Taxes on
a monthly basis, along with the monthly Minimum Rent. Initially,
such monthly payments shall be as set forth in Section 1.1(H).
Tenant's proportionate share of Real Estate Taxes shall thereafter
be estimated by Landlord on an annual basis for each calendar year
ending on December 31. Should the actual costs of Real Estate
Taxes be less than each tenant paid, the amount overpaid by the
Tenant will be credited towards such costs for the first month of
the next year or if the Tenant is terminating, a refund shall be
made provided no other charges are outstanding by Tenant. If Real
Estate Taxes are more than Landlord's estimate, Tenant shall pay
such excess within thirty (30) days of receiving..a detailed
statement from Landlord. In the event Tenant does not make said
payment monthly, or reimburse Landlord at the end of any calendar
year in the event of a deficiency, as aforesaid, Tenant shall be
in default of this Lease. Landlord, at Landlord's option, may
obtain separate taxable status for the Demised Premises, and in
such event, Tenant shall pay 100% of such taxes as Additional Rent.
Additionally, with respect to taxes:
(A) RIGHT TO CONTEST ASSESSMENTS: Landlord may contest any
and all Real Estate Taxes. The cost of any such contest
shall be paid as Additional Rent in the same
proportionate share as the Real Estate Taxes are paid
and any refund or recovery shall be shared in the same
proportionate manner. Tenant shall have no right to
contest assessments without the prior written consent of
Landlord.
I
(H) REAL ESTATE TAE: Real Estate Tax means: (i) any fee,
license fee, license tax, business license fee,
commercial rental tax levy, charge assessment, penalty
or tax imposed by any taxing or judicial authority
against the Shopping Center or land upon which the
Shopping Center is located; (ii) any tax imposed upon
the Shopping Center by any state, county or local
governmental authority including without limitation all
school district taxes; (iii) any tax on the Landlord's
right to receive, or the receipt of, rent or income from
the Shopping Center or against Landlord's business of
leasing the Shopping Center (However, provision (iii) is
not applicable to any of Landlord's income tax) ; (iv)
any tax or charge for fire protection, streets, side-
-6-
1
walks, road maintenance, refuse or other services
provided to the Shopping center by any government
agency; (v) any tax imposed upon this transaction, or
based.upon a reassessment of the Shopping Center due to
a change in ownership or transfer of all or part of
Landlord's interest in the Shopping Center; and (vi) any
charge or fee replacing, in whole or in part, any tax
previously included within the definition of Real Estate
Tax.
2.4 COMMON AREA MAINTENANCE CHARGES: Commencing upon the
Delivery of Possession and thereafter on the first of each month
Tenant will pay Landlord, along with the monthly Minimum Rent
payment, as Additional Rent, one-twelfth (1/12) of Tenant's
proportionate share of the annual common area operating costs, as
hereinafter defined. Initially, such monthly payment shall be as
set forth in Section 1.1(H) . However, if Tenant's use of the
Demised Premises is directly responsible for a material increase in
the Shopping Center charges for common area operating costs, Tenant
shall be solely responsible for such excess cost. The common area
operating costs shall thereafter be estimated by Landlord on an
annual basis for each calendar year ending on December 31. Should
the actual common area operating cost be less than each tenant
paid, the amount overpaid by the Tenant will be credited towards
common area operating costs for the first month of the next year or
if the Tenant is terminating, a refund shall be made provided no
other charges are outstanding by Tenant. If common area-operating
costs are more than Landlord's estimate, Tenant shall pay such
excess within thirty (30) days of receiving a detailed statement
from Landlord. Failure to pay shall be a default under this Lease.
2.5 AwusTMENT OF MINIMUM RENT: Intentionally Omitted.
2.6 PERCENTAGE RENT: Intentionally Omitted.
2.7 GROSS SALES: As defined in this Lease, "Gross Sales" shall
mean the aggregate of all gross receipts of Tenant, subtenants or
sublessees, concessionaires or licensees and any business conducted
on or at the Demised Premises or through outside sales agents,
regardless of whether such receipts be evidenced by check, credit,
charge account, exchange or otherwise without reserve or deduction
for inability or failure to collect (but nothing contained in this
Section 2.7 shall be construed as granting Tenant the right to
assign or sublet the Demised Premises or to utilize the Demised
Premises for any use not otherwise allowable under other provisions
of this Lease). Gross Sales shall include those amounts received
from any transaction, including, but'not limited to, the amounts
received from the sale or rental of goods, wares, merchandise and
shelf and/or floor space, gift certificates and for services and
repairs performed on or from the Demised Premises, together with
the amount of all orders taken or received at the Demised Premises,
whether such orders be filled therefrom or elsewhere as well as all
-7
receipts which Tenant in the normal and customary course of its
operations would credit or attribute to its business on the Demised
Premises, and shall include sales made by or from vending devices
in the Demised Premises (but nothing contained herein shall give
Tenant the right to install mechanical or vending machines in the
Demised Premises). Gross Sales shall also include, but not be
limited to, all deposits not refunded to purchasers and all sales
to employees or agents of Tenant.
Gross Sales shall not include (or if included shall be
deducted therefrom) cash or credit refunds upon gross receipts
where the merchandise sold or some part of it is returned by the
purchaser to the Tenant; and the amount of any sales, use, or gross
receipts tax imposed by any Federal, state, municipal or other
governmental authority directly on sales and collected from
customers, provided that the amount thereof is billed separately to
the customer and is required to be paid by Tenant to such Govern-
mental authority. The sales price of merchandise returned by
customers for exchange shall be included in Gross Sales. No
franchise or capital stock tax and no inheritance, income,
occupation, or similar tax or license-fee based upon income, sales
or profits, as such, shall be deducted from Gross Sales. Tenant
agrees to report Gross Sales to Landlord on an annual basis for the
first two years of the Lease only.
2.8 RECORD BEEPING: .Intentionally omitted.
2.9 AUDIT: Intentionally omitted.
2.10 LATE CEARGE: If Tenant fails to pay any Additional Rent or
Minimum Rent when due, Tenant shall pay to Landlord a "Late
Charge" of five cents ($0.05) for each dollar so overdue to defray
the cost of collection and administration.
2.11 DEFINITION OF ADDITIONAL RENT: Without limiting any other
provision of this Lease, it is expressly understood and agreed that
all Percentage Rent, the Tenant's proportionate share of Taxes,
Common Area Maintenance charges and all other charges which the
Tenant is required to pay hereunder, including, without limitation,
the Promotional-Charge, together with all interest and penalties
that may accrue thereon, shall be deemed to be Additional (but not
Minimum) Rent, and in the event of non-payment thereof by the
Tenant, the Landlord shall have all of the rights and remedies with
respect thereto as would accrue to the Landlord for non-payment of
Minimum Rent. Tenant's obligation to pay Additional Rent is
independent of all of the other covenants, conditions and
obligations of either party to this Lease.
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ARTICLE III: USE OF DEMISED PREMISES
3.1 TEN-74 IISE; Tenant shall use the Demised Premises solely
for the purposes.set forth in Section 1.1 (M) and fo no other
business or purpose without prior consent from Landlorrd.
(A) No auction, fire or bankruptcy sales may be conducted
within the Demised Premises without.the previous consent
of the Landlord.
(B) The Tenant shall not use the malls or sidewalks adjacent
to the Demised Premises or the recessed vestibules, if
any, of the Demised Premises for business purposes
(including, without limitation, the distribution of
handbills or advertising of any type) without the
previous consent of the Landlord.
(C) The Tenant shall keep the display windows of the Demised
Premises clean and shall keep the same electrically
lighted during such periods of time as the Shopping
Center shall be open and, in addition, during such other
periods of time as shall be determined by the Landlord,
provided windows throughout a major portion of the
Shopping Center are kept lighted during such additional
periods, and for this purpose shall install and maintain
a mechanical time-clock.
(D) The Tenant shall at all times keep the Demised Premises
fully and adequately stocked and fixtured. The Tenant
shall devote the maximum possible floor area of the
Demised Premises to selling space (consistent with the
• permitted uses hereunder) , and shall not use any portion
of the Demised Premises for storage or other services,
except as is consistent with its operations in the
Demised Premises.
(E) The Tenant shall at all times fully and adequately heat
and/or air-condition (as the circumstances require) the
Demised Premises.
(F) The Tenant agrees that it and its employees and others
connected with the Tenant's operations at the Demised
Premises will abide by all reasonable rules and
regulations from time to time established by 'the
Landlord by written notice to the Tenant with respect to
such Shopping Center, a current copy of which are
attached hereto as Exhibit D, but which are subject to
change at Landlord's discretion.
3.2 CONTINUOUS OPERATION: Tenant shall continuously operate and
keep open to the public the entire Demised Premises in good faith
for the duration of the lease term from Monday through Friday
during the hours of 10:00 AM to 6:00 PM and on Saturday from 10:00
a.m. to s:oo p.m. Tenant will carry a complete stock of
merchandise, maintain an adequate staff including a qualified store
manager headquartered at the Demised Premises to accommodate
customers and at all times promote the business through advertising
and display of merchandise so as to produce the maximum Gross Sales
possible. Tenant may open at earlier hours or close at a later
time and open on Sunday, providing such opening is not in violation
of any local govern-mental ordinance or law. Tenant may also close
on major nationally recognized religious holidays and for periodic
inventory. It is important to the success of a Shopping Center
that all tenants have uniform days and hours of operation. Tenant
acknowledges that this obligation is a material and significant
inducement to the Landlord to enter into this Lease and Tenant
agrees to abide by the hours and days of opening specified herein
or•be,in violation of this Lease.
3.3 RAD0 OF OPERATT^u: Tenant, or any other person, firm or
corporation which controls or is controlled by Tenant, or any
franchise or licensee of any of them, shall not open a competing or
similar business, either directly or indirectly operating within a
radius of five (5) miles from the Shopping Center, during the term
of this Lease. This radius clause does not apply to businesses of
Tenant currently open and in operation within said radius at the
time this Lease is executed.
3.4 UTILITIES: Tenant agrees to pay for Tenant's use of all of
its requirements for utilities, including but not limited to,
electricity, gas, sewer, heat, water and all other utilities and
taxes or charges for such utility services which are used by or
attributable to Tenant's Demised Premises from the date of Delivery
of Possession of the Demised Premises by Landlord to Tenant. Where
Landlord furnishes one or more of the utility services, Tenant
shall accept and use same, paying all reasonable charges therefor.
Landlord's charges shall not exceed the rates charged by
local utility companies to retail customers for the same or similar
services. In no event will Landlord be liable for an interruption
or failure in the supply of any such utilities or services supplied
by Landlord because of repairs or improvements or for any cause
beyond Landlord's control.
3.5 SIGNS: It is Landlord's desire to create a Shopping Center
environment that is modern and upscale. Towards this end, Landlord
has established a uniform tenant sign criteria, (see Exhibit "E"),
that will compliment and enhance the look of the Shopping Center.
Tenant will not, without first obtaining Landlord's consent, place
on any exterior door, wall, window, roof or fascia of the Demised
Premises, any sign, awning, canopy or advertisement or other such
matter including decorations and light attractions. Approved signs
and approved advertisements shall be installed at Tenant's expense
and maintained at all times in a good condition. If Tenant
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i
not meet Landlords sign nstalls any sign not previously approved by Landlord that does
authority, w hout 'liability, to remove aandor store the sin he
Tenant's sole expense and at Tenant's risk, if Tenant fails to
voluntarily remove the sign within seven (7) days after receiving
written notification from Landlord of the violation. Expenses
incurred by Landlord for removing and storing Tenant's sign shall
be immediately paid by Tenant as Additional. Rent. In addition,
Landlord reserves the right at its expense to temporarily remove
repairs, a restores, constructs or renovates the Demised Premisesoor
other premises within the Shopping Center which adjoin the Demised
Premises, upon giving Tenant seven (7) days advance written
notification. Subject to attached sign criteria Landlord hereby
approves Tenant's sign design (Exhibit E-1) and will also allow one
neon sign in Tenant's window (see Exhibit E-2).
3.6 SEWER DTa"Rpi2 .1HLT ,,, h: Tenant shall be entitled to
discharge sewage from the Demised Premises into the sanitary sewer
system to be constructed by Landlord for the benefit of the
Shopping Center within which the Demised Premises are located, but
Tenant covenants and agrees that such discharge (whether by Tenant
or any other person or entity possessing or using the Demised
Premises) shall not exceed an average of 250 gallons per day (the
Reserved Capacity"). The average number of gallons per day of
sewage discharged from the Demised Premises for each calendar year
will be based on the average daily flow during the three '(3)
consecutive months in any calendar year with the highest volume of
sewage flow from the Demised Premises. "Average daily flow" shall
be determined from the water consumption of the Demised Premises as
evidenced by meter readings taken from the water meter monitoring
water service to the Demised Premises, but excluding any meter
readings for water used in fire sprinkler systems, fire hydrants,
and/or site landscaping irrigation provided that the aforesaid
excluded uses are separately metered or submetered. one gallon of
water consumption shall equal one gallon of sewage discharge. The
discharge of sewage from the Demised Premises in excess of the
Reserved Capacity shall constitute a default by Tenant hereunder.
In the event of a default, Landlord shall have the right to pursue
all remedies at law and/or in equity, including the right to obtain
an-injunction enjoining Tenant from discharging sewage from the
Demised Premises in excess of the Reserved Capacity. Tenant shall
indemnify and hold Landlord harmless from any and all claims,
liabilities and costs (including reasonable attorneys fees) made
against or incurred by Landlord as a result, directly or
indirectly, of the discharge of a quantity of sewage from the
Demised Premises in excess of the Reserved Capacity.
ARTICLE IV: COMMON AREAS
4.1 DEFINITION OF COMMON AREAS: Common areas are all areas,
space, equipment, and special services provided by Landlord for
common or joint use and benefit of the Tenant and other tenants of
the shopping center, their customers, employees, agents and
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%
invitees. This includes without limitation: roofs, walls, parking
areas, access roads, driveways, sidewalks, ramps, stairways, wash
rooms, fountains, public phones, pylon and/or other common area
signs, shelters, lighting fixtures and equipment, security
facilities, and the cost of maintaining these areas for the benefit
of the Shopping Center.
4.2 COMMON AREA OPERATING COST.
include all costs and expenses of evCommon area operating costs
incurred by the Landlord (including reasonkind ablenandaaure paid or
reserves) in operating, managing, equipping PPr(if an e
the extent provided by the Landlord), ligh ing9 repairing
replacing and maintaining all parking facilities (including the
repair and maintenance of any parking structure subsequently
installed in the Shopping Center for the common use of customers
and/or employees of the Shopping Center, but not including the
original construction cost of said parking structure), utilities
and
utilities facilitieands
facilities h such Shopping Center
areas (including
and off-site
facilities, all taxes, assessments, costs and other expenses
related thereto), and all other common areas of the Shopping
Center (including, but without limitation, all landscaping and
gardening), and the fees, costs or expenses, if any, required for
the maintenance and preservation of any rights arising under any
reciprocal easement agreement (REA) affecting the Shopping
Centei, or to fulfill any obligations arising under. such -an. REA.
Such costs and expenses shall likewise include (but shall not be
limited to) water and sewer charges; utility system installation
charges and assessments; costs of all roof and other maintenance,
repairs and replacements performed by the Landlord; costs of the
installation, operation, maintenance, repair and replacement of any
energy management system; workers' compensation for employees
working on the Shopping Center, public liability, rent
interruption, fire insurance, extended coverage and all other
perils coverage, plus all endorsements and other insurance
coverages deemed reasonable and necessary by Landlord; wages,
unemployment taxes, social security taxes for employees working on
t
he Shopping Center, and personal property taxes and assessments;
fees for
loudsp akrsqand anyiothersequand ipment suppl ing music to the common
areas; reasonable depreciation of equipment used in the operation
or maintenance of the common areas; and an administrative fee equal
to the fifteen percent (15-1) of the total costs and expenses of
operating, managing and maintaining the Shopping Center.
4.3 CONTROL•OF COMMON AREA: The common areas as defined in this
Lease shall be under the exclusive control and management of the
Landlord who shall have the exclusive right to establish, revoke,
modify and enforce rules and regulations governing the common
areas. Tenant shall make no use of the common Area except for non-
exclusive parking in designated areas and for ingress and egress
without the prior consent of Landlord.
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5.1 _LANDLORD'S CONSTRUCTION: The construction work required to
be done on the Demised Premises by Landlord prior to the Delivery
of Possession shall be as set forth in Exhibit "B".
5.2 TENANT'S ALTERATIONS: Tenant agrees, upon Delivery of
Possession of the Demised Premises, that it will with due diligence
proceed to obtain a building permit, if a building permit is
required by Silver Spring Township for Tenant's Work, and undertake
such construction and renovation work, install such stock, fixtures
and equipment and to perform such other work as shall be necessary
or appropriate in order to prepare tkie Demised Premises for the
opening of business as soon thereafter as possible but in no event
later than thirty (30) days after Delivery of Possession of the
Demised Premises.
In the event that Tenant does not open the Demised Premises
for the conduct of its business within thirty (30) days after the
Commencement Date, Landlord shall have, in addition to any and all
remedies herein provided, the right to collect not only the Minimum
Rent herein provided, but supplementary rent at the rate of
one-fifteenth (1/15th) of the monthly Minimum Rent per day for each
and every day that Tenant shall fail to commence to do business as
herein provided. Further, in the event Tenant does not open the
Demised Premises for the conduct of its business within sixty (60)
days after the Commencement Date, as defined in 'Section 2.2,.
Landlord shall have the right at any time thereafter to terminate
this Lease by giving Tenant written notice of such termination,
whereupon this Lease shall be terminated, except for Landlord's
rights and remedies upon termination as herein provided.
In addition, Tenant shall not, without Landlord's prior
consent, either at the inception or later in the lease term,
commence any alterations or modifications without first complying
with Exhibit F attached hereto and without first providing Landlord
a copy of Tenant's plans, and copies of any and all governmental
permits, approvals and authorizations required in connection with
such work.
In matters concerning changes to the exEernal appearance of
the Demised Premises or that would alter the design and/or the
structural integrity of the Shopping,Center, or changes to the
interior structural soundness of the Demised Premises, consent
shall be at Landlord's sole discretion.
Alterations and construction plans consented to by Landlord
shall be completed at Tenant's sole expense and shall be performed
in a good workmanlike manner in compliance with all governmental
requirements, and with all of the terms of this Lease, at such
times as to cause a minimum of interference with other construction
-13-
of Landlord Cente . T nant agrees ongoing,
to indemnify and businesses
hold s Landlord h armlessi ng
against any loss, liability or damage resulting from such work.
Tenant shall provide its own trash containers for construction
debris and use side/service entrances where possible.
I
53 BIIiLDERS Risx: Tenant shall also maintain builders "all
ri sk", fire and comprehensive general liability, workman0s
compallensaof Tena t es construti nl and alteration activities, naming !
Landlord and Landlord's mortgagees as additional insureds, in such i
amounts and on such terms as are satisfactory to Landlord and
customary for like construction. Prior to commencing any
construction work, Tenant shall provide Landlord with copies of
.certificate(s) reflecting such insurance coverage.
5.4 TE2tMIS DISCHARGE OF LIENS: Tenant shall promptly pa its
contractor and materialmen for all work done upon the Demised.
Premises. Nothing in this Lease shall be construed to authorize
Tenant or others dealing with Tenant, to charge the rents of the
Demised Premises or the interest of Landlord in the estate of the
Demised Premises with a mechanic's lien or encumbrance of any kind,
and under no circumstance shall Tenant be construed to be the
agent, employee or representative of Landlord in completing
Tenant's work. All such work shall be for the immediate use and
benefit of Tenant and not Landlord. Tenant shall, upon request,
provide Landlord lien waivers, and should any such lien be asserted
or filed, Tenant shall immediately discharge of record (either by
payment or by filing of the necessary bond, or otherwise) the same
within ten (10) days. If Tenant fails to remove said lien within
ten (10) days, Landlord may at its option, remove the lien by
paying the claim, without investigating the validity thereof, and
Tenant shall pay Landlord upon demand the amount paid by Landlord
to remove the lien, including Landlord's costs and expenses.
Tenant's failure to cause the lien to be released of record or to
reimburse Landlord within five (5) days of Landlord's request for
reimbursement shall be a default of Tenant's Lease.
Landlord shall have the right, in its sole discretion, to
require Tenant, or its contractor, to obtain a performance and
payment bond in an amount and with a surety company satisfactory to
Landlord. If the laws of the state provide for filing a statutory
bond to eliminate attachment of mechanic's or materialmen's liens,
Tenant shall require that its contractor (or Tenant shall itself)
file 'a statutory bond prior to initiation of construction.
ARTICLE VI: MAINTENANCE AND REPAIRS
6.1 LANDLORD'S OBLIGATIONS: Except as provided for in Article
XII, Destruction, and Article XIII, Eminent Domain, Landlord shall
keep and maintain the foundation and exterior walls, the cost of
which shall be included in common area operating costs, except when
such repairs were necessitated from Tenant's actions or that of its
officers, agents, customers or employees.
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A. Tenant shall be responsible at its own expense for
keeping the Demised Premises neat and clean and in good order,
condition and repair at all times from the date of Delivery of
Possession of the Demised Premises, and continuously thereafter
until the end of the term hereof, including, but without
limitation, replacement and restoration as required of the
following:
I. The exterior and interior portion of all doors and door
checks, door locks, emergency hardware openers, and door
handles;
2. Windows, window molding, plate glass, store fronts,
glass door panels, and showcases surrounding the
Demised Premises,
3. All plumbing and sewage facilities within the Demised
Premises, including free flow to the utility owned sewer
line, including water meters;
4. Heating and air conditioning systems and equipment,
sprinkler systems and electrical systems (after
Landlord's Certificate of Occupancy has stated such
systems are properly functioning) including electrical
meters and wiring;
5. Floors and floor covering, walls and wall covering,
ceiling tiles and ceiling lights (including bulbs and
coverings);
6. Tenant fixtures and all installations made by Tenant;
7. Repairs to the Demised Premises due to illegal entry;
and
S. Maintain Tenant's sign(s) in good repair as required in
Section 3.5.
B. Tenant shall contract with a qualified service company
for reasonable maintenance of the heating, ventilation and air
conditioning equipment and furnish Landlord a copy of the contract
within ten (10) days after opening and any subsequent contracts
upon cancellation or expiration of the original contract. Landlord
agrees to furnish Tenant with photocopies of any separately issued
Contractor's Warranties applicable to the Demised Premises.
. C. Cleanliness is important in Shopping Centers as it
encourages repeat customers. Tenant shall therefore keep and
maintain the Demised Premises in a clean, safe, sanitary and
offensive-odor free condition and shall abide by all rules and
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r
regulations of governmental agencies and operate in compliance with
all requirements of law, statute, ordinance, regulation, rule or
other governmental authority affecting the Demised Premises and all
appurtenances thereto. Tenant shall be responsible for trash
storage and removal through rental of commercial dumpsters.
Landlord will provide locations in the Shopping Center for
placement of these dumpsters.
D. If Tenant refuses or neglects to commence and to
complete repairs, Landlord may, at Landlord's option, place Tenant
in default of the Lease and make said repairs and Tenant shall pay
the cost thereof plus any administrative charges, as Additional
Rent upon demand.
6.3 SURRENDER OF DEMISED PREMISES: At the expiration of the
tenancy, Tenant shall peaceably surrender the Demised Premises in
the same condition as received by it on the "Delivery of
Possession," reasonable wear and tear expected. All keys to the
Demised Premises and lock combinations to any safes or vaults which
may be in the Demised Premises shall also be turned over to
Landlord at the same address used for rent payment. Any and all
alterations, additions, improvements, and fixtures which may be
made or installed by either the Landlord or the Tenant upon the
Demised Premises and which in any manner are attached to the
floors, walls or ceilings (including, without limitation, any
linoleum or other floor covering of similar character which may be
cemented or otherwise adhesively affixed to the floor, and any
heating, ventilating and/or air-conditioning equipment) shall
remain upon the Demised Premises, and at the termination of this
lease shall be surrendered with the -Demised Premises as a part
thereof without disturbance, molestation or injury. However, the
usual trade fixtures and furniture which may be installed in the
Demised Premises prior to or during the term hereof at the cost of
the Tenant may be removed by the Tenant from the Demised Premises
upon the termination of this Lease if, but only if, the Tenant is
not then in default hereunder. Further, Landlord may require
Tenant - to remove trade fixtures and any other alterations,
installations or improvements during the last thirty (30) days of
its tenancy by giving sixty (60) days written notice to Tenant.
Tenant shall repair any and all damage caused to the Demised
Premises resulting from or caused by removal of Tenant's fixtures
and for any of Tenant's alterations, installations or improvements.
Tenant's obligation to perform this covenant shall survive the
expiration of this Lease. In no event shall the Tenant be entitled
to any heating, ventilating or air-conditioning equipment.
Any items remaining in the Demised Premises on the termination date
shall be deemed abandoned and shall become the property of landlord
and Landlord may dispose of same without liability. Any cost to
remove fixtures or repair damage caused by Tenant's vacating shall
be Tenant's expense and Landlord may use Tenant's Security Deposit
to help defray such expenses but the Security Deposit shall not
constitute satisfaction of the cost, should such cost exceed the
amount of the Security Deposit.
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7.1 CASH LTY INBiRANCE
continuousl The Tenant also agrees that it shall
personal y keep its fixtures, merchandise, equipment and other
property from time to time located in, on or about the
Demised Premises, and all leasehold improvements to the Demised
Premises insured by reputable, duly licensed insurance companies
against loss or damage by fire with the usual.extended coverage
endorsements in amounts at least equal to the full replacement cost
thereof. During the term of this Lease, the proceeds from any such
policy of insurance shall be used for the repair or replacement of
the fixtures and equipment so insured. Prior to the Commencement
Date, and no less often than annually thereafter, and at any other
time upon the request of the Landlord, the Tenant shall furnish to
the Landlord evidence of such continuous insurance coverage
satisfactory to the Landlord. It is understood and agreed that the
Tenant assumes all risk of damage to its own property arising from
any cause whatsoever, including, without limitation, loss by theft
or otherwise.
7•2 WXYVER of BUSROGAT;oN: Insofar as and to the extent that
the following provision may be effective without invalidating or
making it impossible to secure insurance coverage obtainable from
responsible insurance companies doing business in the Commonwealth
of Pennsylvania (even though extra premium may result therefrom),
the Landlord and the Tenant mutually agree that with respect to any
loss which is covered by insurance then being carried by them,
respectively, the one carrying such insurance and suffering said
loss releases the other of and from any and all claims with respect
to such loss to the full extent, but only to the extent, of such
insurance coverage; and they further mutually agree that their
respective insurance companies shall have no right of subrogation
against the other on account thereof. In the event that any
additional premium is payable by either party as a result of this
provision, the other party shall reimburse the party paying such
premium the amount of such extra premium. The releases herein
contained shall not apply to any loss or damage occasioned by the
willful acts of either of the parties hereto.
7.3 ;NCREASB SN FIRE INSURANCE PREMIUMS: Tenant agrees not to
keep, use, sell or offer for sale, in or upon the Demised Premises,
any articles or goods which may be prohibited by the standard form
of fire insurance policy or will otherwise increase the rate of
fire or other insurance on the Demised Premises. Tenant agrees to
pay upon demand any such increase in premium for any insurance
which may be carried by Landlord on said Demised Premises, or the
Shopping Center of which the same are a part, resulting from the
use of the Demised Premises by Tenant, whether or not Landlord has
consented to such use.
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6 "
7.4 LIABILITY INStmaun9.
---?. Tenant shall, during the entire term
hereof, keep in full force and effect a policy of public liability
and property damage insurance with respect to the Demised Premises bus
and
erated b Tenant and Tenantein the Demised Pr mises in which the permitted subtenants tlimits
of coverage shall not be less than $1,000,000.0o per occurrence.
The limits of coverage shall be increased from time to time upon
Landlord's request, in accordance with shopping center management
practices then prevailing in the area of the Shopping Center. The
policy shall be in form approved by Landlord, shall name Landlord
(and such other persons as are in privity of estate with the
Landlord as may be set out in notice from time to time) and Tenant
as the insureds, and shall contain a clause that the insurer will
not cancel, materially modify or fail to renew the insurance
without first giving Landlord thirty (30) days prior written
notice. The insurance policy shall be written by an insurance
company, authorized to do business in the Commonwealth of
Pennsylvania and having a policyholders' rating of no less than "A"
in the most current edition of Best's Insurance Reports. A copy of
the policy or a certificate of insurance shall be delivered to
Landlord. The policy shall insure Tenant's performance of the
indemnity provisions of this Lease.
7.5 BUSINESS INTERRUPTION ESMU n.NCE:
Landlord's sole discretion, maintain a Landlord may, in
interruption insurance, the cost of which shalllbe of business
area operating costs. Part of common
7.6 INDEMNIFICATION OF LANDLORD:
indemnify, defend and save harmless Landlord,?tits will protect,
servants, from and against any and all claims, actions, damages,
suits, judgements, decrees, orders liability and expense
(including all costs, expenses and liabilities incurred in or in
connection with any such claim or proceeding, and attorney fees) in ion wi loss of life, bodily damagetto prop rty of whatever kind or ncharacter, hosoever caused, -ersonal arising from or out of any occurrence in, upon or about the Demised
Premises, or in the occupancy or use by Tenant of the Demised
Premises or any part thereof, or occasioned wholly or in part by
any act or omission of Tenant, its agents, contractors, licensees,
employees, servants, sublessees, or concessionaires, notwithstand-
ing any possible negligence (whether sole, concurrent or otherwise)
on the part of Landlord, its agents, contractors, employees or
servants.
7.7 PLATE OL•aee: Tenant shall replace at its own expense any
and all plate and other glass in and about the Demised Premises
damaged or broken from any cause whatsoever.
7.a LANDLORD'S MORTGAGEE: wherever herein Tenant is required to
add Landlord as an insured to any policy of insurance, to insure
Landlord, or to provide a certificate or other proof of insurance
or a notice to Landlord, Tenant must treat any mortgagee of
Landlord that Landlord has notified Tenant of in a like manner.
-18-
o..? 8 0
m8.1 ortgag-PFUI'- M-TI _7 Landlord shall have the right to transfer,
e, assign, pledge, sell and leas ,
encumber in whole or in part, the Demised apremisese
therwise
Center, this Lease and convey or oShoppi
exist, and rents and all amounts rights of Landlord existing and nq
g and to
hereof; payable to it under the provisions
such ri ht d nothing herein contained shall limit or restrict any
4 and the rights of the Tenant under this Lease shall be
subject and subordinate to all instruments executed
executed in connection with the exercise of any such ri
Landlord, ,including and to be
Demised Premises , but not limited to, any REA affecting of the
mortgage, deed of ofd the Shopping Center and the lien of anthe
y
placed upon rust or security agreement now or
Place the Demised Premises and the Shopping Center and tofall
and e renewals, modifications, consolidations,participants, replacements
xtensions thereof.
Said subordination shall not require
the consent of Tenant, but Tenant covenants and agrees, if requested, execute and deliver upon demand such furthers in event or
subordinating this Lease to the lien of any such mortgage, trust, security agreement or sale instruments
requested by the Land o and leaseback ashall d be
mortgagee, holder of any security agreement, er rtgagee, proposed
other party and Tenant hereby irrevocably appoints the Landlord as
its attorney-in-fact to execute and deliver any such instrument for
the name of the Tenant. Notwithstanding anything set out in
this Lease to the contrary, in the event the holder of an
or deed of trust elects to have this Lease superior to its mortgage
or deed of trust any mortgage then
notified by such encumbrance holderI,othis easeeshall be deem d priori fthe
lien of said mortgage or deed of Ltrust, whether this Lease is
adopted prior to or subsequent to the data nP a-z?
of trust.
8•$ NOrill
IC To ram -
default in the The Landlord shall in no event be in
performance of any of the Landlords obligations unl
and
unt perf°r!°e su h eoblig ti nsilwithin thirty shall have failed to
additional time as is reasonably required t1o)corrys, any such
default, after notice the Landlord
the Tenant to the Landlord pror such
specifying wherein th
operly
obligation. Landlord has failed to perform such holder Demised pr mi, i notifies the f a ant rtgage which includes the
over the Landlord's rights under that such holder has taken
assert any right to deduct the cost Lease, the Tenant shall not
claim against the Landlord from rent thereaft rs or
and payable, shall look solel y monetary
y to the Landlord .for satisfaction ofsuch
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0
• AV
claim. Nothing herein contained shall be deemed to create any
rights in Tenant not specifically granted in this Lease or under
applicable provisions of law.
8.3 ESTOPPEL C
tim M-1 XCATE: Tenant agrees, at any time, and from
time to time, upon not less than ten (10) days' prior notice by
Landlord, to execute, acknowledge and deliver to Landlord, a state-
ment in writing addressed to Landlord or other. party designated by
Landlord certifying that this Lease is in full force and effect
(or, if there have been modifications, that the same is in full
force and effect as modified and stating the modifications);
stating the actual commencement and expiration dates of the Lease; dat beenipaid;eth to the Demised ePremisesohave been g completed any,
on have
before the date of such certificate and that all conditions
precedent to the Lease taking effect have been carried out or
fulfilled; that Tenant has accepted possession; that the lease term
has commenced; Tenant is occupying the Demised Premises and is open
for business; and stating whether or not there exists any default
by either party in the performance of any covenant, agreement,
term, provision or condition contained in this Lease, and, if so,
specifying each such default of which the signer may have knowledge
and the claims or offsets, if any, claimed by the Tenant; it being
intended that any such statement delivered pursuant hereto may be
relied upon by Landlord or a purchaser of Landlord's interest and
by ' any. mortgagee or prospect-ive mortgagee of any mortgage
affecting the Demised Premises or the Shopping Center. 71f :Tenant
does not deliver such statement to Land-lord within such ten (10)
day period, Landlord, and any prospective purchaser or
encumbrancer, may conclusively presume and rely upon the following
facts: (i) that the terms and provisions of this Lease have not
been changed except as otherwise represented by Landlord; (ii)
that this Lease has not been cancelled or terminated except as
otherwise represented by Landlord; (iii) that not more than one
month's Minimum Rent or other charges have been paid in advance;
and (iv) that Landlord is not then in default under this Lease. In
such event, Tenant shall be estopped from denying the truth of
such facts. Tenant shall also, on ten (10) days written notice,
provide an agreement in favor of and'in the form customarily used
by such encumbrance holder, by the terms of which Tenant will agree
to -give prompt written notice to any such encumbrance holder in the
event of any casualty damage to the Demised Premises or in the
event of any default on the part of Landlord under this Lease, and
will agree to allow such encumbrance holder a reasonable length of
time after notice to cure or cause the curing of such default
before exercising Tenant's right of self-help under this Lease, if
any, or terminating or declaring a default under this Lease.
8.4 ATTORNMENT: At the option of the holder of any mortgage
affecting the Demised Premises, Tenant agrees that no foreclosure
of a mortgage affecting the Demised Premises, nor the institution
of any suit, action, summary or other proceeding against the
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w
Landlord herein, or any successor Landlord, or any foreclosure
proceeding brought by the holder of any such mortgage to recover
possession of such property, shall by operation of law or otherwise
result in cancellation or termination of this Lease or the
obligations of the Tenant hereunder, and upon the request of the
holder of any such mortgage, Tenant covenants and agrees to execute
a
n instrument in writing satisfactory to such party or parties or
to the
Tenant attornsetoosu hesuc successor mortgaged inpremises
interestn.foreclosure whereby
8.5 AM.AKMZNT of "I=: With reference to any assi
the Landlord of the Landlord's interest in this Lease, or theerents
payable hereunder, conditional in nature or otherwise, which
assignment is made to the holder of any mortgage on the Demised
Premises, the Tenant agrees:
(A) that the execution thereof by the Landlord, and the
acceptance thereof by such holder, shall never be deemed
an assumption by such holder of any of the obligations
of the Landlord hereunder, unless such holder shall, by
written notice sent to the Tenant, specifically other-
wise elect; and
(B) that, except as aforesaid, such holder shall be treated
as having assumed the Landlord's obligations hereunder
only upon foreclosure of such holder's mortgage and the
taking of possession of. the Demised Premises by such
holder.
ARTICLE IS: A88I NT AND BUBLETTING
9.1 CCN1MM RpnnTaMD: Tenant shall not voluntarily or involun-
tarily assign this Lease in whole or part, nor sublet (which term,
without limitation, shall include the granting of concessions,
licenses, and the like) all or any part of the Demised Premises
without following the procedures detailed herein and obtaining the
prior express consent of Landlord in each instance, which consent
may be granted or withheld in Landlord's sole discretion.
Notwithstanding anything contained in this Article IX, Tenant shall
have the right to assign lease to Paoli Bike and Sports, Inc.
subjec to a erns an cond ions o Exhibit V. n
event the Tenant seeks the Landlord's consent pursuant to this
section 9.1, the Tenant shall furnish the Landlord with a Confes-sion of
Jud similar to those c nt ined in section i14.2 hereof,?executed by athe
proposed assignee or sublessee, as the case may be, as well as such.
information regarding the prospective assignee or sublessee as the
Landlord may require, including without limitation information
regarding financial ability and business experience relating to the
uses permitted hereunder. The consent by Landlord to any assign-
ment or subletting shall not constitute a waiver of the necessity
for such consent in any subsequent assignment or subletting. The
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(] .. n
foregoing shall be construed to include a prohibition against any
voluntary or involuntary assignment or subletting arising by
operation of law. For the purposes of this Lease, the entering
into of any management agreement or any agreement in the nature
thereof transferring control of any substantial-percentage of the
profits and losses from the business operations of the Tenant in
the Demised Premises to a person or entity other than the Tenant,
or otherwise having substantially the same effect, shall be treated
for all purposes as an assignment of this Lease and shall be
governed by the provisions of this section 9.1.
In the event that Tenant receives a bona fide written offer
from a third party for the sublease or assignment of the Demised
Premises, Tenant shall forthwith notify Landlord in writing,
attaching a copy of said offer, of Tenant's desire to sublet or
assign this Lease upon terms of said offer, whereupon Landlord
shall have thirty (30) days to accept or reject said assignment or
sublease, or at Landlord's sole option, cancel and terminate this
Lease, in which case Landlord may elect to enter into a direct
lease with the proposed assignee or subtenant. The failure of
Landlord to either accept or reject said assignment or sublease
within the said thirty (30) days period shall be deemed a rejection
of said assignment or sublease.
If Tenant shall purport to assign this Lease, or sublet all
or any portion of the Demised Premises, or permit any-person or
persons other than Tenant to occupy the Demised Premises, Mandlord
may collect rent from the person or persons then or thereafter
occupying the Demised Premises and apply the net amount collected
to the rent reserved herein, but no such collection shall be deemed
a waiver of this Article IX, or the acceptance as tenant of any
such purported assignee, subtenant or occupant, or a release of
Tenant from the further performance by.Tenant of covenants on the
part of Tenant herein contained.
Notwithstanding any assignment or sublease, Tenant shall
remain fully liable for the obligations of the Tenant hereunder,
including, without limitation, the obligation to pay the rents and
other amounts provided for under this Lease, and shall not be
released from performing any of the terms, covenants or conditions
hereof. If Tenant is a corporation or partnership, any sale,.
transfer, pledge, leveraged buy out or other disposition of
twenty-five percent (25%) or more of the corporate stock or the
stock of any corporate guarantor of the Tenant specified in Section
1.1 (N) hereof, or the stock of the parent corporation of the
Tenant, or twenty-five percent (25%) or more of partnership
ownership (or any general partner interest in the case of a limited
partnership) (whether such sales, transfer or other dispositions
occur at one time or at intervals so that in the aggregate, over
the term of this Lease, such transfers of stock or partnership
interests shall have occurred), or any reorganization or
-22-
Landlord shall be entitled to, and Tenant shall remit to
Landlord, any profit or consideration which may inure to Tenant as
a result of any assignment or subletting to anyone other than Paoli
Bike and Sports, Inc. If Tenant assigns or -sublets the'Demised
Premises, the Minimum Rent shall thereafter be adjusted for the
balance of the term of this Lease such that the Minimum Rent
payable hereunder shall thereafter be equal to the sum of (i) the
greater of (a) the annual Minimum Rent specified in Section 1.1 (G)
or 1.1 (J) (whichever is applicable) of this Lease or (b) the
annual Minimum Rent payable pursuant to such assignment or
sublease, plus (ii) the highest of the amounts of the annual
Percentage Rent payable hereunder for and with respect to any of
the then last three (3) full lease .years. preceding the assignment
or subletting. At Landlord's request, Tenant shall assign to
Landlord the right to collect rent (including any Additional Rent)
from any subtenant of Tenant and to apply such proceeds to Tenant's
obligations under this Lease.
Landlord shall have the right to sell, convey, transfer or
assign all or part of its interest in the real property and the
buildings of which the Demised Premises are a part or its interest
in this Lease. All covenants and obligations of Landlord under this
Lease shall cease upon the execution of such conveyance, transfer
or assignment, but such covenants and obligations shall run with
the land and shall be binding upon the subsequent owner or owners
thereof or of this Lease.
ARTICLE Z:
10.1 WASTE OR iaANMR: Tenant shall not commit or suffer to be
committed any waste upon the Demised Premises or any nuisance,
offensive odor or loud noise (including but without limitation, the
use of loudspeakers) or other act or thing which may disturb the
quiet enjoyment of any other tenant in the building in which the
Demised Premises may be located or in the Shopping Center, or which
may disturb the quiet enjoyment of occupants of adjoining proper-
ties.
10.2. INBIIRANCE REOIIIREMENTB: Tenant shall, at.its sole cost and
expense, comply with all of the requirements of any insurance
carrier for the Shopping center, now in force or which may
hereafter become applicable.
10.3 ' EAZARD)US SUBSTANCES: Tenant covenants and warrants that
Tenant, Tenant's Work, as set forth in Exhibit F attached hereto
and made a part hereof, and any alterations thereto and Tenant's
use of Demised Premises and performance of its obligations
hereunder will at all times comply with and conform to all present
and future laws, statutes, ordinances, rules and regulations of any
federal, state or local governmental, quasi-governmental .or
-23
regulatory authorities (the "Laws"), including, but not limited to,
environmental laws, rules and regulations which relate to the
transportation, storage, placement, handling, treatment, discharge,
generation, production or disposal (collectively "Treatment") of
any liquid, solid or gaseous waste, petroleum product, waste
hazardous m radioacti terialsv ofaste, poly-chlorinated biphenyls, asbestos,
becomes regulated b y kind, and any substance which is or
regulation y any Law, statute, ordinance, rule or collecti
Tenant
furt warrants that it wills not e"Waste ngage in or permit an her covenants and
to engage in any Treatment of any Waste on or which aff ctstthe
Demised Premises. Immediately upon receipt of any Notice (as
hereinafter defined) from any person or entity, Tenant shall
deliver to Landlord a true, correct and complete copy of any
written Notice. "Notice" shall mean any note, notice, or report of
any suit, proceeding, investigation, order, consent order,
injunction, writ, award, or action related to or affecting or
indicating the Treatment of any Waste in or affecting the Demised
Premises.
Tenant hereby agrees, in addition to and not in lieu of any
other indemnities contained in this Lease or otherwise provided by
law, that it will indemnify, defend, save and hold harmless the
Landlord and Landlord's officers, directors, shareholders,.
emploandyassigns (agents, collectively partners", and their Indemnified Parties"
and heirs, to reimburse the Indemnified Parties with respect p successors
o--d from,
all damages, claims, judgments, penalties, fines, liabilities,
loss, costs' and expense (including, without limitation, all
attorney's fees and expenses, court costs, administrative costs,
costs of appeals, consultant's and expert's fees and expenses,
damages arising from any adverse impact on marketing of space or
diminution in value of the Demised Premises or the Shopping Center
and damages for the loss or restriction of use of rentable or
usable
S
Parties hopping pCent r?,oincurred amenit
asserted against Demised
the Indemnified
representati o nor or undertaking arising Tenant under ) thithe breach of
s Section 10.3aor
(b) arising out of the Treatment of any Waste by Tenant or any
licensee, concessionaire, manager or other party occupying or
u
Premises. sing the Demised Premises, or in or affecting the Demised
includes, butTissnotnlimited to, costs incurreddinbconneTenant also
ction with
any investigation by Landlord of site conditions from time to time
or of any cleanup, remedial, removal, or restoration work required
by any federal, state or local government agency or political
subdivision because of any release of Waste or breach of this
Section 10.3.
Landlord is given the right, but not the obligation, to
inspect and monitor the Demised Premises and Tenant's use of the
Demised Premises in order to confirm Tenant's compliance with the
-24-
terms and the representations set forth in this section 10.3.
Landlord may require that Tenant deliver to Landlord concurrent
with Tenant's vacating the Demised Premises at Tenant's expense a
certified statement by licensed engineers, in form and substa ,
nce
satisfactory to Landlord, stating that Tenant, Tenant's Work and
any alterations thereto and Tenant's use of the Demised Premises
complied and conformed to all Laws which relate to the. Treatment of
any Waste in or affecting the Demised Premises.
The Tenant agrees to deliver upon request from Landlord
estoppel certificates to Landlord expressly stipulating whether
Tenant is engaged in or has engaged in the Treatment of any Waste
in or affecting the Demised Premises, and whether the Tenant has
caused any spill, contamination, discharge, leakage, release or
escape of any Waste in or affecting the Demised Premises, whether
sudden or gradual, accidental or anticipated, or of any other
nature, at or affecting the Demised Premises and whether, to the
best of Tenant's knowledge, such an occurrence has otherwise
occurred at or affected the Demised Premises.
30.4 GOVE MRMO PERMITS: Tenant shall, in performing its ob-
ligations hereunder and at its own expense, comply with all ap-
plicable present and future laws, ordinances, rules, and regul-
ations of all federal, state and local authorities from time to
time applicable to the Demised Premises and the business conducted
therein by Tenant, including, without limitation, obtaining and
maintaining any and all permits, licenses, certificates or other
authorizations now or hereafter necessary, lawful and proper in
order to permit Tenant to use the Demised Premises for the purposes
set forth in Section 1.1 (M) copies of all such permits,
licenses, certificates and authorizations shall be delivered to
Landlord on a timely basis.
10.5 SoR: All of the terms, covenants, warranties and in-
demnifications contained in this Section shall survive the term-
ination of this Lease.
ARTICLE XI: AD_vERTISING A*7D PROMOTIONAL PROG
11-1 ADVERT rwrvn »... ..
establish an Advertisinvmvandry Promotional The Lannddlord may 'Pro
referred to as the °Program") to furnish and maintain ad(hereafter
vertising
and sales promotions which will benefit the Shopping Center. The
promotions director staff and any consultants hired by Landlord to
direct and perform the activities of the Program shall be under the
direction and supervision of Landlord. A representative of each
business occupying the Shopping Center will review the advertising
and other promotional activities provided by the Program. All
monies received under this Section shall -be used solely for
advertising, public relations, promotional services and administ-
rative expenses relating to the promotion of the Shopping Center.
During each lease year, Tenant shall pay to Landlord in monthly
-25-
C
installments in advance, its share of the cost of the Program, an
amount herein called the "Promotional charge", based on total
square footage of the Demised Premises. For any fraction of a
month at the commencement or expiration of the term, the monthly
payment of the Tenant's Promotional Charge shall be prorated.
T
suitable advertising he Tenant agrees, upon request from the Landlord, to furnish
An
advertisements, circulars material for or promsuch otionsurneed not make
specific reference to any one or more occupants of the Shopping
Center, but may advertise the Shopping Center generally or
specific portions therein or occupants of such portions. It is
understood and agreed that if the Landlord shall elect, the
Landlord may replace the Program with an association (the
"Association") in order to carry out the activities formerly
carried out by the Program. Upon the creation of such Association,
the Tenant shall immediately join such Association and maintain
membership therein. In addition thereto, the Tenant shall pay to
the Association a sum equal to that which the Tenant would have
paid to the Landlord for the Tenant's Promotional Charge if the
Program had remained in existence. If the Landlord shall create
asuch i depndent on entity, it replace ish understood or if the and agreed that, shall the
Tenant shall fail to pay the dues and assessments to the
Association or if the Tenant shall fail to pay the Promotional
Charge to such an independent Program, as above provided, the
Landlord shall have the same rights granted to the Landlord under
this Lease for the non-payment of rent or other
though such dues or assessments may be ?r tion
or the Tenant's Promotional Chare may abee pato such yable to oanother
entity.
Although neither a Program nor an Association is currently
planned, Landlord, at a future date reserves the right, but
undertakes no obligation, to establish such a Program or
Association should Tenant's sales or Shopping center business
require such a promotional fund.
ARTICLE ZII; DESTRUCTION
12.1 TOTAL OR Panmrar DESTRIICTiOM:
be If the Demised Premises shall
partially or totally destroyed by fire or other casualty
insurable under full standard fire and extended risk insurance,
as to become partially or totally untenantable, the same (unlessso
Landlord shall elect not to rebuild as hereinafter provided) shall
be repaired and restored by and at the cost of Landlord, to the
extent originally constructed by Landlord (consistent, however,
with zoning laws and building codes then in existence), and to
substantially the condition in which such portion of the Demised
Premises was in at the time of such damage.
-26-
If (i) more than one-third (1/3) of the building in which the
Demised Premises are located shall be substantially destroyed or
damaged (as that term is hereinafter defined) by fire or other
casualty (whether or not the Demised Premises are damaged or
destroyed), or (ii) any lender of Landlord does not permit use of
insurance proceeds to repair and restore the building, or (iii) the
unexpired portion of the term of this Lease shall be two (2) years
or less at the date of the damage, then Landlord may elect not to
repair or rebuild the Demised Premises, or so much thereof as was
originally constructed by Landlord, by giving written notice within .
sixty (60) days after such occurrence of its election to terminate
this Lease; otherwise, Landlord shall proceed with such recon-
struction with reasonable speed after such occurrence (but the
Landlord shall not be responsible for any delay which may result
from any cause beyond the Landlord's reasonable control), and this j
Lease shall remain in full force and effect. Notwithstanding
anything to the contrary contained herein, Landlord shall not be
obligated to commence reconstruction or repairs until Landlord has
received the proceeds of any applicable insurance claim and
Landlord's obligation to restore and repair is limited to the
proceeds of such insurance.
In the event that Landlord shall exercise the right given
heretofore to terminate, then this Lease and the terms hereof shall
cease as of the date of such damage or destruction, and all rent or
other charges payable by Tenant shall be prorated to the date of
such damage or destruction. In the event that this -ease-is not
canceled, then Minimum Rent only shall be abated or reduced
proportionately during the period in which the Demised Premises are
rendered wholly or partially untenantable to the extent such damage
or destruction shall interfere with the operation of Tenant's
business in the Demised Premises and to the extent that Landlord is
paid the equivalent of such Minimum Rent by rent loss insurance
proceeds. Such abatement or reduction shall continue for the
period commencing with such destruction or damage and ending with
Landlord's substantial completion of such work or repair or
restoration as Landlord is obligated or elects to do, as the case
may be, and as provided in this Article XII. Nothing in this
Section shall be construed to abate or reduce Additional Rent.
12:2 PARTIAL DESTRUCTION OF SHOPPING CENTER: In the event that
50% or more of the Shopping Center shall be substantially damaged
or destroyed by fire or other cause, notwithstanding that the
Demised Premises may be unaffected by such fire or other cause,
Landlord shall have the right, to be exercised by notice in writing
delivered to Tenant within sixty (60) days after said occurrence,
to cancel and terminate this Lease. Upon the giving of such notice
to Tenant, the term of this Lease shall expire by lapse of time 30
days -after such notice is given, and Tenant shall vacate the
Demised Premises and surrender the same to Landlord pursuant to the
terms of this Lease.
12.3 TENANT'S RESTORATION: Unless this Lease is terminated as
provided in Section 12.1 or Section 12.2 of this ARTICLE XII, if
the Demised Premises shall be damaged or destroyed by fire or other
-27-
01
casualty, then the Tenant shall: (i) repair and restore all
portions of the Demised Premises not required to be restored by the
Landlord pursuant to this ARTICLE XII to substantially the
condition which such portions of the Demised Premises were in at
the time of such casualty; (ii) equip the Demised Premises with
trade fixtures and all personal property necessary or proper for
the operation of the Tenant's business; and (iii) open for
business in the Demised Premises as soon thereafter as possible.
12.4 SUBSTANTIAL DAMAGE: The term "substantially damaged or
destroyed", as used in this ARTICLE XII, shall have reference to
damage of such a character as cannot reasonably be expected to be
repaired, or the premises restored, within sixty (60) days from the
time that such repair or restoration work would be commenced.
ARTICLE XIII: EMINENT DOMAIN
13.1 CONDEMNATION: In the event of any condemnation or
conveyance in lieu thereof of the Demised Premises or the Shopping
Center, or both, whether whole or partial, Landlord may terminate
this Lease, and in any event, Tenant shall have no claim against
landlord or the condemning authority for the value of the unexpired
term, and Tenant shall not be entitled to any part of the
compensation or*award, whether paid as compensation for diminution
in value to the leasehold or to the fee of the Demised Premises,
and Landlord shall receive the full amount thereof, Tenant hereby
waiving any right to any part thereof and assigning to Landlord its
interest therein; provided, however, to the extent the amount
recoverable by Landlord, as hereinabove set forth, is not
diminished thereby, Tenant shall have the right to claim and
recover from the condemning authority (but not from Landlord) such
compensation as may be separately awarded to Tenant in Tenant's own
name and right on account of all damage to Tenant's business by
reason of the condemnation, any cost which Tenant may incur in
removing Tenant's property from the Demised Premises and any costs
of relocating Tenant's business. Further, Tenant's rights to
recover under this paragraph shall be subordinate to the rights of
Landlord's first mortgagee.
13.2 RESTORATION OF DEMISED PREMISES: In the event that any part
of•the Demised Premises shall be taken or condemned, and should
this Lease not be terminated in accordance with the foregoing
provision, the Landlord will, within a reasonable time after such
taking or condemnation, restore the Demised Premises to an
architectural unit as nearly like its condition prior to such
taking as shall be practicable. The Minimum Rent or a fair and
just proportion thereof, according to the nature and extent of the
damage sustained, shall be suspended or abated until such
restoration is substantially complete.
-28-
(A) failure of Tenant to make, within ten (10) days after
the date when due, any payment of minimum Rent, Additional Rent or
other monetary amount payable by Tenant hereunder or to timely
discharge any other monetary obligation (it being understood that
Tenant's obligation to pay any rental herein is an independent
covenant and that Tenant will pay such rental without offset or
deduction);
(B) Tenant's failure to perform any other of the terms,
conditions or covenants of this Lease to be observed or performed
by Tenant, which failure continues for ten (10) business days after
written notice thereof, provided, however that such right to
written notice shall be limited to one (1) time during each
calendar year of the term of this .Lease;
(C) if Tenant shall become bankrupt or insolvent, or file
or have filed against it any bankruptcy proceedings, or take or
have taken against it in any court pursuant to any statute, either
of the United States or of any state, a petition of bankruptcy or
insolvency, or for reorganization or for the appointment of a
receiver or trustee of all or a portion of Tenant's property, or if
Tenant makes an assignment for the benefit of creditors, or
petitions for or enters into such an arrangement;
(D) if Tenant fails, after the term of this Lease
commences, to be open for business to the public for more than one
day when required by this Lease to be so open in any one lease
year, or for more than an aggregate of any three (3) such days
during the term hereof, or if the Tenant shall otherwise abandon or
vacate the Demised Premises, or suffer this Lease to be taken under
any writ of execution;
(E) if Tenant shall default in the timely payment of
Minimum Rent, Additional Rent, or other charge payable by Tenant
hereunder or to timely discharge any other monetary obligation
three times in any twelve month period, notwithstanding the fact
that any such default shall have been cured;
(F) the falsification by Tenant or any agent of Tenant of
any report or statement required to be furnished to Landlord
pursuant to the terms of this Lease; the falsification of any such
document shall be deemed an incurable, material breach of this
Lease and, at Landlord's option, constitute an immediate
termination of Tenant's right to possession of the Demised
Premises;. or
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(G) at the option of Landlord, if Tenant or any affiliate
of Tenant shall default with respect to any other lease or
agreement between it and Landlord or any affiliate of Landlord.
The notice and grace period provisions in subparagraphs (A)
and (B) above shall have no application to the defaults referred to
in subparagraphs (C), (D), (E), (F) and (G) above.
If any Event of Default occurs, the Landlord, besides all-
such other rights or remedies it may have under this Lease or in
law or in equity, shall have the right, without demand or notice
(and Tenant hereby expressly waives any notice to quit possession
of the Demised Premises) to enter the Demised Premises and take
possession thereof and of all permanent improvements thereon and
may remove all persons and property, from the Demised Premises by
force, summary action, or otherwise, and such property, may be
removed and stored in a public warehouse or elsewhere at the cost
of and for the account of Tenant, all without service of notice or
resort to legal process, and without being deemed guilty of
trespass or becoming liable for any loss or damage which may be
occasioned thereby and without prejudice to any remedies which
might otherwise be used for arrears of rent or preceding breach of
covenant. Notwithstanding the above, Tenant shall at all times be
entitled to remove its business records from the Demised Premises.
Tenant agrees that Tenant shall have no further claim under this
Lease and shall quit and deliver up the possession of the Demised
Premises, including permanent improvements to the Demised-Premises;
when this Lease terminates by limitation or in any other manner
provided for herein.
14.2 REMEDIES: If an Event of Default occurs, the Landlord may
elect-to re-enter or take possession as provided for herein, and it
may either terminate this Lease, or it may from time to time
without terminating this Lease make such alterations and repairs as
may be necessary in order to relet the Demised Premises or any part
thereof for such term or terms (which may be for a term extending
beyond the term of this Lease) and at such rental or rentals and
upon such other terms and conditions as Landlord in its sole
discretion may deem advisable. Any reletting shall be done in such
a manner as Landlord may deem proper. It is specifically
understood and agreed that the Landlord shall *be entitled to take
into account in connection with any reletting of the Demised
Premises all relevant factors which would be taken into account by
a sophisticated developer in securing a replacement tenant for the
Demised Premises, such as, but not limited to, the type of shopping
center then being operated on the Shopping center, matters of
tenant mix, the type of operation proposed to be conducted by any
such replacement tenant, and the financial responsibility of any
such -replacement tenant; and the Tenant hereby waives, to the
extent permitted by applicable law, any obligation the Landlord
may have to mitigate the Tenant's damages. Further, if no such
waiver of any duty that may be imposed upon Landlord to mitigate
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`
Tenant's damages is effective, then at no time shall Landlord's
decision to lease or let other available space in the Shopping
Center be deemed to be a failure to mitigate said damages. Upon
each such reletting all rentals received by Landlord shall be
applied first to the payment of any indebtedness other than rent
due hereunder from Tenant to Landlord; second to the payment of any
costs and expenses of such reletting including brokerage fees and
attorneys' fees, costs of collecting the rent in connection with
such relet, and the costs of any necessary or desirable alterations
and repairs; third to the payment of the most overdue rent owed at
that time; and the residue, if any, shall be held by Landlord and
applied in payment of future rent as the same may become due and
payable hereunder from Tenant. If such rentals received from such
reletting during any month be less than that to be paid during that
month by Tenant hereunder, Tenant shall be liable for the payment
of such deficiency to Landlord. Such deficiency shall be calculated
and become payable monthly in the same manner as Minimum Rent, as
specified in section 2.1 hereof. No such re-entry or the taking of
possession of the Demised Premises by Landlord shall be construed
as an election on its part to terminate this Lease or to accept a
surrender thereof unless a written notice of such intention be
given to Tenant. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate
this Lease for such previous breach. Should Landlord at any time
terminate this Lease for any Event of Default, in addition to any
other remedies it may have, it may recover from Tenant all damages
it may occur by reason of such breach, including the cost of
recovering the Demised Premises, and the amount of rent and charges
equivalent to rent reserved in this Lease for the remainder of the
stated term, all of which amounts shall be immediately due and
payable from Tenant to Landlord. In determining the rent which
would be payable by Tenant hereunder subsequent to default, the
annual rent for each year of the unexpired term shall be equal to
the Minimum Rent set forth in Section 1.1G (or if default occurs
during any option period hereto, as set forth in Section 1.1(J)),
and the Additional and Percentage Rents specified in Section 14.3.
To induce the Landlord to enter into this Lease, (i) the
Tenant confirms and agrees that this transaction is a commercial
and not a consumer transaction, (ii) the Tenant hereby waives, to
the full extent permitted by law, any right to trial by jury in any
action, proceeding or counterclaim brought by the Landlord against
the Tenant on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of the Landlord and the
Tenant, the Tenant's use or occupancy of the Demised Premises,
and/or any claim of injury or damage, and (iii) the Tenant agrees
not to interpose, to the full extent permitted by law, unless
Tenant would lose its cause of action by not doing so, any
counterclaim of whatever nature or description in any proceeding
commenced by the Landlord for nonpayment of Minimum Rent,
Additional Rent or any other amount due hereunder, provided the
foregoing shall not be construed as a waiver of the right of the
Tenant to assert such claims in any separate action brought by the
Tenant.
4
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C'
THE FOLLOWING THREE PARAGRAPHS SET FORTH WARRANTS OF AUTH-
ORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST TENANT. IN
GRANTING THESE WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST
TENANT, TENANT HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY,
AND, ON THE ADVICE OF THE SEPARATE COUNSEL OF TENANT, UNCONDITION-
ALLY WAIVES ANY AND ALL RIGHTS TENANT HAS OR MAY HAVE TO PRIOR
NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CON-
STITUTIONS AND LAWS OF THE UNITED STATES AND.THE COMMONWEALTH OF
PENNSYLVANIA.
(A) Tenant hereby empowers any prothonotary or attorney
of any Court of Record to appear for Tenant in any and all actions
which may be brought for Minimum Rent, Percentage Rent, Additional
Rent and/or any other charges, payments, costs and expenses herein
reserved as rent, or herein agreed to be paid by Tenant and/or to
sign for Tenant an agreement for entering in any competent Court an
amicable action or actions for the recovery of such rent or other
charges or expenses, and in said suits or in said amicable action
or actions to confess judgment against Tenant for all or any part
of the Minimum Rent, Percentage Rent, Additional Rent and other
charges specified in this Lease and then due and unpaid, and for
interest and costs together with reasonable attorney's fees. Such
authority shall not be exhausted by one exercise thereof but
judgment may be confessed as aforesaid from time to time as often
as any of said rent and/or other charges shall fall due or be in
arrears.
(B) Upon the expiration of the then current term of this
Lease or the earlier termination or surrender hereof as provided in
this Lease, it shall be lawful for any attorney for Tenant, as well
as for all persons claiming by, through or under Tenant, to sign an
agreement for entering in any competent Court an amicable action in
ejectment against Tenant and all persons claiming by, through or
under Tenant and therein confess judgment of the recovery by Land-
lord of possession of the Demised Premises, for which this Lease
shall be its sufficient warrant, whereupon, if Landlord so desires,
a writ of possession or other appropriate writ under the Rules of
Civil Procedure then in effect may issue forthwith, without any
prior writ or proceedings, provided, however, if this Lease is
terminated and the possession of the Demised Premises remain in or
be*restored to Tenant, Landlord shall have the right for the same
default and upon any subsequent default or,defaults, or upon the
termination of this Lease Lnder any of the terms of this Lease to
bring one or more further amicable actions as hereinbefore set
forth to recover possession of the Demised Premises and confess
judgment for the recovery of possession of the Demised Premises as
hereinabove provided.
(C) In any amicable action of ejectment and/or rent,
Landlord shall first cause to be filed in such action an affidavit
made by him or someone acting for him, setting forth the facts
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6
• t.1 ?
necessary to authorize the entry of judgment, and, if a true copy
of this Lease (and of the truth of the copy such affidavit shall be
sufficient evidence) be filed in such action, it shall not be
necessary to file the original as a warrant of attorney, and Tenant
hereby releases to Landlord and to any and all.attorneys who may
appear for Tenant all errors in said proceedings and all liability
thereof. If proceedings shall be commenced by Landlord to-recover
possession under the Acts of Assembly and Rules of Civil Procedure,
either at the end of the term or upon the earlier termination of
this Lease, or for non-payment of rent or any other reason, Tenant
specifically waives the right to any notice to quit which may be
required by the Landlord and Tenant Act of 1951 or any other
statute or law.
14.3 1ZDDITIONAL RENT: For the purposes of this ARTICLE XIV, it
shall be deemed that Additional Rent, for any period after any
default and entry by the Landlord would have been at a monthly rate
thereafter equal to the average monthly Additional Rent which the
Tenant was obligated to pay to the Landlord under this Lease
either: (i) from the Commencement Date hereof to the
to the date
default; or (ii) during the last three (3) years prior of such default - whichever is greater.
14.4 guARA2i1'ORB: Intentionally omitted.
14.5 SANRRUPTgR OR OTHER DEFAULT: Tenant agrees that this Lease
is a lease of "real property in a shopping center" and that a
debtor in possession and/or trustee in bankruptcy acting pursuant
to the provisions of the revised bankruptcy code, may assume this
Lease only if, in addition to such other conditions of this Lease
and of applicable law, said debtor in possession/trustee shall
provide Landlord with such written assurances of future performance
as are acceptable to Landlord. Any closing of Tenant's business,
change in product or service mix, alteration in the size of the
Demised Premises, change in advertising program, change in method
of operation or change of Tenant's trade name by said debtor in
possession/trustee shall be deemed to be a material disruption in
the tenant mix and balance of the Shopping Center. Landlord shall
have at all times a valid lien from all rentals and other sums of
money becoming due hereunder from Tenant, upon all goods, waresof
equipment, fixtures, furniture and other personal prop shall
Tenant situated- on the Demised Premises, and such property
not be removed therefrom without the consent of Landlord until all
arrearages in rent as well as any and all other sums of money then
due "to Landlord shall
first have been discharged.Upon the occurrence ofany Ev nt of Default bya Tenant,
n or
Landlord may, in addition
upany on they remedies Premises and stake
enter to
by law or equity, P
possession of any and all goods, wares, equipment, fixtures,
furniture and other personal property of Tenant situated on the
Demised Premises without liability for trespass or con ersio ,soled
sell the same with or without notice at public or private -33-
.........
with or without having such property at the sale, at which Landlord
or its assigns may purchase, and apply the proceeds thereof less
any and all expenses connected with the taking of possession and
sale of the property, as a credit against any sums due by Tenant to.
Landlord. Any surplus shall be paid to Tenant, and Tenant agrees to
pay any deficiency forthwith. Alternatively, the lien hereby
granted may be foreclosed in the manner and form provided by law
for foreclosure of security interest or in any. other form provided
by law. Any statutory lien for rent is not hereby waived, the
express contractual lien herein granted being in addition and
supplementary thereto. Tenant will execute upon Landlord's request
a financing statement and security agreement evidencing Landlord's
security interest in Tenant's personal property and warrants to
Landlord that there are no prior liens or security interests on
said personal properties. In addition to other remedies available
under this Lease, in the event of an occurrence of an Event of
Default or, in the event of a threatened breach by Tenant of any of
the covenants or provisions hereof, Landlord shall have the right
of injunction and the right to invoke any remedy allowed by law or
in equity as if re-entry, summary proceedings and other remedies
were not herein provided for. Mention in this Lease of any
particular remedy shall not preclude Landlord from any other
remedy, at law or in equity. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future
laws, including possession pursuant to §504 of the Landlord and
Tenant Act of 1951, in the event Tenant is evicted or dispossessed
for any cause, or in the event Landlord obtains possession of
the Demised Premises. No receipt of monies by Landlord from or
for the account of Tenant, or from anyone in possession or
occupancy of the Demised Premises, after the termination of this
Lease shall affect any notice given Tenant prior to the receipt of
such money, it being agreed that after (i) Landlord has repossessed
the Demised Premises, (ii) the service of notice of termination,
(iii) the commencement of a suit, or (iv) final judgement for
possession of the Demised Premises,. Landlord may receive and
collect any rent or other amounts due Landlord and such payment
shall not in any respect reinstate this Lease and shall not waive,
affect or impair said possession, notice, suit or judgement without
the express written consent of Landlord.' No delay or omission of
Landlord to exercise any right or remedy under this Lease, or at
law or in equity shall be construed as a waiver of any Event of
Default.
When, pursuant to the Bankruptcy code, the Trustee or Tenant
and Debtor-In-Possession shall be obligated to pay reasonable use
and occupancy charges for the use of the Demised Premises or any
portion thereof, such charges shall not be less than the Minimum
Rent, Percentage Rent, Additional Rent and all other charges
accruing hereunder.
14.6 FAILURE TO PAY, INTEREST: If at any time Tenant shall fail
to pay any taxes, assessments, or liens, provide insurance or
perform any act required by this Lease to be made or performed by
it, or fail to pay any charge payable by Tenant or to timely
discharge any other monetary obligation of Tenant required by this
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Lease, Landlord, without waiving or releasing Tenant from any
obligation or default under this Lease, may (but shall be under no
obligation to) at any time thereafter make such payment or perform
such act for the account and at the expense of Tenant. Tenant shall
pay to Landlord a "late charge" of five cents ($.05) for each
dollar paid or each dollar of expense so incurred by Landlord and
all sums payable by Tenant to Landlord under this Lease. All sums
so -paid by Landlord, all costs and expenses so incurred and all
sums payable by Tenant to Landlord under this Lease shall accrue
interest at a rate equal to the lesser of one and one-half (1.5k)
per month or the maximum rate permitted by law, from the date of
payment or incurring thereof by Landlord and shall constitute
Additional Rent payable by Te:iant under this Lease and shall be
paid by Tenant to Landlord upon demand.
ARTICLE XV: ACCESS BY LANDLORD
15.1 RIGHT OF ENTRY: Landlord or Landlord's agents shall have
the right to enter the Demised Premises at all times as may be
required by an emergency situation; and at all reasonable times
after reasonable notice to Tenant to examine the same and to show
it to prospective purchasers or lenders and to make such
inspections, repairs, alterations, improvements or additions as
Landlord may deem necessary or desirable, and Landlord shall be
allowed to take all material into and upon said Demised Premises
that may be required therefor without the same constituting an
eviction of Tenant in whole or part.
If repairs are required to be made by the Tenant pursuant to
the terms hereof or if the Tenant is required to perform any other
obligation under this Lease, the Landlord may demand that the
Tenant make such repairs or perform such obligation forthwith, and
if the Tenant refuses or neglects to commence such repairs or
performance and complete the same with reasonable dispatch, after
such demand, the Landlord may (but shall not be required so to)
make or cause such repairs or performance to be done and shall not
be responsible to the Tenant for any loss or damage that may accrue
to its stock or business by reason thereof. If the Landlord makes
or causes such repairs or performance to be-done, or endeavors so
to do, the Tenant agrees that it will gorthwith, on demand, pay to
the Landlord the cost thus incurred as Additional Rent, and if it
shall default in such payment, the Landlord shall have the remedies
provided in ARTICLE XIV hereof.
During the six (6) months prior to the expiration of the term
of this Lease or any renewal term, Landlord may exhibit the Demised
Premises to prospective tenants or purchasers.
Nothing herein contained, however, shall be deemed or con-
strued to impose upon Landlord any obligation, responsibility or
liability whatsoever for the care, maintenance or repair of the
building or any part thereof, except as otherwise herein
specifically provided.
r
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Y'
ARTICLE ZVI: TENANT'S PROPERTY
16.1 TAXES ON LEASEHOLD: Tenant shall be responsible for, and
shall pay before delinquency, all municipal, county, or state taxes
assessed during the term of this Lease against any leasehold in-
terest or personal property of any kind owned by or placed in,
upon, or about the Demised Premises by Tenant, and the Tenant shall
pay all license fees and other charges which may lawfully be
imposed upon the business of the Tenant.
16.2 LOBS AND DAMAGE: The Tenant agrees to use and occupy the
Demised Premises and to use such other portions of,the Shopping
center as it is herein given the right to use at its own risk; 'and
that the Landlord shall have no responsibility or liability for any
loss of or damage to the Tenant's leasehold improvements or to
fixtures or other personal property of the Tenant or those claiming
by, through or under the Tenant. The provisions of this Section
shall apply during the whole of the term hereof, and any earlier
period that Tenant may enter the Demised Premises after receiving
written permission therefor from Landlord.
The Tenant agrees that the Landlord shall not be responsible
or liable to the Tenant, or to those claiming by, through or under
the Tenant, for any loss or damage that may be occasioned by or
through the acts or omissions of persons occupying adjoining
premises or any part of the premises adjacent to or connecting with
the Demised Premises or any of the buildings on the Shopping
Center, or otherwise, or for any loss or damage resulting to the
Tenant to those claiming by, through or under the Tenant, or its or
their property, from the bursting, stopping or leaking of water,
gas, sprinkler, sewer or steam pipes.
16.3 NOTICE 8Y TENANT: Tenant shall give immediate notice to
Landlord in case of fire or accidents, or damage to or of defects
in the Demised Premises or in the building of which the Demised
Premises are a part.
ARTICLE EVII: NOLDING OVER. SUCCESSORS
17.1 HOLDING OVER: Any holding over by the Tenant after the
expiration of the term of this Lease shall be treated as a tenancy
at sufferance at two times the Minimum Rent payable immediately
before said expiration of the Lease (and if varying rates are
specified herein, at two times the highest such rate) Additional
Rent and other charges specified herein, prorated on a daily basis,
and shall otherwise be on the terms and conditions set forth•in
this Lease, so far as applicable.
17.2 • . SUCCESSORS AND ASSIGNS: Except as otherwise herein
expressly provided, this Lease and all the covenants, terms,
provisions and conditions herein contained shall inure to the
benefit of and be binding upon the heirs, representatives,
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O-Z
_......... .,...:_._ _....__ ;._..._ _....:..__...__:•.. _.._ ..:......._...._.:;
successors and assigns of each party hereto, and all covenants
herein contained shall run with the land and bind any and all
successors in title to Landlord. The reference contained herein to
successors and assigns of the Tenant is not intended to constitute
a consent to assignment by the Tenant, but has reference only to
those instances in which the Landlord may later give consent to a
particular assignment as required by the provisions of ARTICLE IX
hereof.
ARTICLE XVIII: OUIET' ENJOYMENT
18.1 TOMLORDOs COVENANT: The Tenant, subject to the terms and
provisions of this Lease, on payment of the rent and observing,
keeping and performing all of the terms and provisions of this
Lease on its part to be observed, kept and performed, shall
lawfully, peaceably and quietly have, hold, occupy and enjoy the
Demised Premises during the term hereof without hindrance or
ejection by any persons lawfully claiming under the Landlord; but
it is understood and agreed that this covenant and any and all
other covenants of the Landlord contained in this Lease shall be
binding upon the Landlord and the Landlord's successors only with
respect to breaches occurring during the Landlord's and the
Landlord's successors' respective ownership of the Landlord's
interest hereunder. It is further understood and agreed that the
Landlord shall in no event be liable for failure to perform any
obligation under this Lease in the event the Landlord is prevented
from so performing by strike, lockout, breakdown, accident, order
or regulation of or by any governmental authority, or failure of
supply, or..inability by the exercise of reasonable diligence to
obtain supplies, parts, or employees necessary to furnish such
services, or because of war or other emergency, or for any cause
beyond the Landlord's reasonable control, or for any cause due to.,
any act or neglect of the Tenant or its servants, agents,
employees, licensees, or any person claiming by, through or under
the Tenant, or any termination for any reason of the Landlord's
occupancy of the premises from which any service or work is being
supplied by the Landlord, and in no event shall the Landlord ever
be liable to the Tenant for any indirect or consequential damages.
EIE:
19.1 WAIVER: The waiver by Landlord of any breach of any term,
covenant or condition herein contained shall not be deemed to be a
waiver of any subsequent breach of the same or any other term,
covenant or condition herein contained. No covenant, term or
condition of this Lease shall be deemed to have been waived by
Landlord unless such waiver shall be. in writing:
19.2 • ACCORD AND SATISPACTION: No payment by Tenant or receipt by
Landlord of a lesser amount than shall be due hereunder, shall be
deemed to be other than a payment on account nor shall any endorse-
ment or statement on any check or any letter accompanying any check
-37- .J
r.
or payment as rent be given any effect or be deemed an accord and
satisfaction, and Landlord may accept such checks without prejudice
to any other rights or remedies which the Landlord may have.
19.3 No PARTNSRSHI,,P: Landlord does not, in any way or for any
purpose, become a partner of Tenant in the conduct of its business
or otherwise, or joint adventurer or a member of a joint enterprise
with Tenant.
19.4 YORCE MAJEIIRE: In the event that either party hereto shall
be delayed or hindered in or prevented from the performance of any
act required hereunder by reason of strikes, lockouts, labor
troubles, inability to procure materials, failure of power,
restrictive governmental laws or regulations, riots, insurrection,
war, or other reason of a like nature not the fault of the party
delayed in performing work or doing acts required under the terms
of this'Lease, then the time allowed for performance of such act
shall.be extended by a period equivalent to the period of such
delay. The provisions of this Section 19.4 shall not operate to
excuse Tenant from the prompt payment of Minimum Rent, Percentage
Rent, Additional Rent, or any other payments required by the terms
of this Lease.
19.3 LANOLORDIS LIABILITY: If Landlord shall fail to perform any
covenant, term or condition of this Lease upon Landlordts part to
be performed, Tenant may not terminate the Lease, and Tenantfs sole
remedies shall be money damages (except as set forth in.Zection
19.16), and further, Tenant hereby waives any and all rights or
claims to consequential or special damages. If Tenant shall
recover a money judgement against Landlord, such judgement shall be
satisfied only out of the proceeds of sale received upon execution
of such judgement and levy thereon against the right, title and
interest of Landlord in the Shopping Center as the same may then be
encumbered and neither Landlord nor if Landlord be a partnership,
any of the partners comprising such partnership shall be liable for
any deficiency.
Notwithstanding anything herein contained to the contrary, it
is specifically understood and agreed that there shall be no
personal liability for any deficiency or otherwise on the part of
the Landlord, its agents, representatives, employees, or any of its
constituent members, partners or shareholders, or their respective
legal representatives, heirs, successors and assigns as the case
may be, with respect to any of the terms, provisions, covenants and
conditions of this Lease or otherwise, and that Tenant shall look
solely to the estate, property and equity of Landlord (or such
successor in interest) in the Shopping center and subject to the
prior rights of any mortgagees for the satisfaction of each and '
every remedy of Tenant in the event of any breach of any of the
terms, provisions, covenants and conditions of this Lease to be
performed by Landlord, or in the event of any other claim which
Tenant may allege against Landlord, its agents, representatives,
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i
employees, constituent
respective ees c e t members, partners or shareholders, or their
which -
- gal representatives, heirs, successors and assigns,
without exculpation
tion. of personal liability shall be absolute and In the event of the sale or other f Landlord's right, title and interest in the Demised Pre is ssorrthe
obligati nsnhereundgrlord shall be released from all liability and
19.6 NOTICES fm n -
be served by cert if0 Any notice by Tenant to Landlord must
at the place desi # Postage prepaid, addressed to Landlord yment Slater, Sandler & Shulman, P.C., One Hartford S nt, with °op.O. to:
231336, Hartford, CT, 06106, Attention: James Ham. Shulman squ Box
or at such other address or addresses as Landlord ma ' Esquire,
from time to time by written notice. Any notice b y designate
may be given by Landlord or Landlord's attorney or lmanag ment La (which
company) to Tenant must be served by certified mail, postage
prepaid, addressed to Tenant at the Demised Premises, or at such
other address or addresses as Tenant may designate from time to
time by written notice to Landlord. All notices shall be effective
upon delivery or attempted delivery in accordance with this Section
19.6. Until otherwise notified in writing, Tenant shall pay all
rent reserved herein and all other sums required under this Lease
by check payable to the order of Landlord, and shall forward the
same to Landlord as herein provided.
19.7 FINANCIAL nT
behalf of Tenant hereb .n. The persons signing this Lease on
Landlord that the financial stersonall at ments delivered to nLandlord prior
to the execution of this Lease properly reflect the true and cor-
rect value of all the assets and liabilities of Tenant. Tenant
acknowledges that in entering into this Lease, Landlord is relying
upon such statements and Tenant shall supply Landlord updated
financial statements of Tenant each lease year.
19.8 ggaRWITORg: Intentionally Omitted.
19.9 CAPTIONS AND ggnmTnN NUMBERS:
numbers, article numbers, and headings appearing captions, section
inserted only as a matter of convenience enand in in
no i ay Leasfine are
limit, construe, or describe the scope or intent of such sections
or articles of this Lease.
19.10 DEBINTT ONS: The word "Tenant"
Pe r son, shall mean each and every
firm or corporation mentioned as a Tenant herein, be the
same one or more; and if there shall be more than one Tenant, any
notice required or permitted by the terms of this Lease may be
given by or to any one thereof, and it shall have the same force
and effect as if given by or to all thereof. If there shall be more
than one Tenant, they shall all be bound jointly and severally.
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19.11 PARTiAi• *NPALiDiTY: If any term, covenant, or condition of
this Lease or the application thereof to any person or circum-
stance, shall to any extent be invalid or unenforceable, the
remainder of this Lease or the application of such term, covenant,
or condition of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
19.12 B$COR M: The Tenant agrees not to record the within
Lease, but each party hereto agrees, on request of the other, to
execute a Notice of Lease in recordable form, complying with
applicable Commonwealth of Pennsylvania laws, and reasonably
satisfactory to Landlords attorneys. In no event shall such
document set forth the rental or other charges payable by the
Tenant under this Lease; and any such document shall expressly
state that it is executed pursuant to the provisions contained in
this Lease, and is not intended to vary the terms and conditions of
this Lease.
19.13 AZMEE AG &ZLMM: The Lease and the exhibits and riders, if
any, set forth all the covenants, promises, agreements, conditions
and understandings between Landlord and Tenant concerning the
Demised Premises and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between them
other than as herein set forth. All prior communications, negotia-
tions, whether oral representations,
ents
both, between the agreemand
hereto, and their representatives, are merged herein and
extinguished, this Lease superseding and cancelling the same.
Except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and executed by the
party against.,, which such subsequent alteration, amendment, change
or modification is to be enforced. If any provision contained in
any rider hereto is inconsistent with any printed provisions of
this Lease the provision contained in such rider shall supersede
said printed provision. Tenant hereby acknowledges that (a) this
Lease contains no restrictive covenants or exclusives in favor of
Tenant; (b) this Lease shall not be deemed or interpreted to
contain, by implication or otherwise, any warranty, representation
or agreement on the part of Landlord that any department store or
regional or national chain store or any other merchant shall open
for business or occupy or continue to occupy any premises in or
adjoining the shopping Center during the term of this Lease or any
part. thereof; (c) before entering into this Lease the Tenant has
made its own observations, studies, determinations and projections
with respect to the Tenant's business in the Demised Premises and
all other factors relevant to the Tenant's decision to enter into
this Lease, including, without limitation, competition, market
size,-- -sales volume, profitability and general, so-called
"demographics" -- both present and prospective; and (d) neither the
Tenant nor any representative of the Tenant has relied upon any
representation by (or any "conversation" with) the Landlord or any
-40-
4
r;;;
representative of the Landlord with respect to any of said factors,
and Tenant hereby expressly waives all claims with respect thereto
and acknowledges that Tenant is not relying on any such warranty,
representation or agreement by Landlord either as a matter of
inducement in entering into this Lease or as a condition of this
Lease or as a covenant by Landlord.
19.14 _VRVIVA?: Notwithstanding anythin in.this Lease to
contrary, the representations and undertakings of Tenant under this
Lease shall survive the expiration or termination of this Lease
regardless of the means of such expiration or termination.
19.15 APPLICABLE LAW: This Lease and the rights and obligations
of the parties arising hereunder shall be construed exclusively by
the provisions hereof and in accordance with the laws of the
Commonwealth of Pennsylvania.
19.16 CONSENTep „n APPnevnrv; Whenever Landlord's consent or
approval is required herein, such consent or approval shall not be
deewritmed until Landlord has provided such consent or approval
Where the consent or approval of Landlord shall be required,
such consent or approval shall be granted in Landlord's sole
discretion, unless otherwise expressly provided. With respect to
any provision of this Lease which either expressly provides or is
held to provide that Landlord shall not unreasonably-withhold or
unreasonably delay any consent or approval, Tenant shall not be
damagesdinto make claim curred by Tenant by and Tenant reason of Landlord's waives failure itofor,
comply, it being understood and agreed that Tenant's sole remedy
shall be an action for specific performance.
:.9.17 ARZKU TY: In the event Tenant hereunder shall be a
corporation, the persons executing this Lease on behalf of Tenant
hereby individually covenant and warrant that: Tenant is a duly
qualified corporation; all steps have been taken prior to the date
hereof to qualify Tenant to do business in the commonwealth of
Pennsylvania; all franchise and corporate taxes have been paid to
date; all future forms, reports, fees and other documents necessary
to *comply with applicable laws will be filed when due; and those
persons executing this Lease on behalf of Tenant are duly qualified
and authorized to bind, and in fact do bind, the corporation. The
Tenant and/or the Guarantor shall deliver to the Landlord, upon the
execution of this Lease, a Clerk's Certificate or Secretary's
Certificate in form reasonably satisfactory to the Landlord,
confirming that the execution of this Lease has been duly
authorized.
In the event Tenant hereunder shall be a partnership, either
general or limited, the persons or entities executing this Lease on
behalf of Tenant hereby individually covenant and warrant that:
-41-
Tenant is a duly qualified partnership; all steps have been taken
prior to the date hereof to qualify Tenant to do business in the
Commonwealth of Pennsylvania, if required by law; all franchise and
partnership taxes have been paid to date; all future forms#
reports, fees and other documents necessary to comply with
applicable law will be filed when due; and those entities executing
this Lease on behalf of the partnership are duly qualified to bind,
and in fact do bind, the partnership.
19.18 1PSEN LEASE BECOMES EFFECTIVE; This Lease shall be
effective only when it is signed and delivered by both Landlord and
Tenant. The Tenant's submission of a signed lease for review by
the Landlord does not give the Tenant any interest, right or option
in the Demised Premises. Upon such full execution and delivery,
all terms, provisions, covenants and obligations of the parties
hereto shall be immediately in full force and effect, and
enforceable in accordance with the terms hereof.
19.19 IMERPRETATTOM: Both parties have read this Lease and had
the opportunity to employ legal counsel and negotiate changes to
the Lease. The Lease is the joint product of the parties and, in
the event of any ambiguity herein, no inference shall be drawn
against a party by reason of document preparation.
19.20 BROKERS: Tenant represents and warrants to Landlord that
no broker or agent negotiated or was instrumental in negotiating or
consummating this Lease excepting only Wargo Properties,
representing Landlord and Dakota Realty Corporation, representing
Tenant as cooperating Broker, as set forth in Section 1.1 (P).
Both Brokers' commissions shall be paid by Landlord. Tenant knows
of no other real estate broker or agent who is or might be entitled
to a commission or compensation in connection with this Lease. All
fees, commissions or other compensation payable to any broker *or
agent of Tenant other than Wargo Properties and Dakota Realty
Corporation shall be paid by Tenant. Tenant shall hold Landlord
harmless from all damages and shall indemnify Landlord for all
damages paid or incurred by Landlord resulting from any claims
asserted against Landlord by brokers or agents claiming through
Tenant, other than Dakota Realty Corporation. Tenant acknowledges
that Tenant has been informed that person(s) associated with
Realtor may have or may acquire an ownership interest in the
Shopping Center, and Tenant acknowledges by signing this Lease that
such ownership interest shall not affect the terms, conditions or
validity of this Lease.
39.21 LANDLORDS PEES AND EXPENSES: Unless prohibited by applic-
able law, the Tenant agrees to pay to the Landlord the amount of
all legal fees and expenses incurred by the Landlord arising out of
or resulting from any act or omission by the Tenant with respect to
this Lease or the Demised Premises, including without limitation,
any breach by the Tenant of its obligations hereunder.
Further, if Tenant shall request the Landlord's consent or
joinder in any instrument pertaining fo this Lease, the Tenant
agrees promptly to reimburse the Landlord for the legal fees
-42-
incurred by the Landlord in processing such request, whether or not
the Landlord complies therewith; and if the Tenant shall fail
promptly so to reimburse the Landlord, same shall be deemed to be
a default in the -Tenant's monetary obligations under this Lease.
Whenever the Tenant shall request approval by the Landlord or
the Landlord's Architect of plans, drawings, specifications, or
otherwise with respect to initial alteration of the Demised
Premises,g subsequent remodelling thereof, installation of signs
includin subsequent changes thereof, or the like, the Tenant
specifically agrees promptly to pay to the Landlordfs Architect (or
reimburse the Landlord for the payment the Landlord makes to said
Architect) for all charges involved in the review and re-review, if
necessary and approval or disapproval thereof, whether or not
approval shall ultimately be given.
19.22. o_TxER AO TXTS: The Tenant hereby warrants and represents
that neither this Lease nor the operation of the Demised Premises
hereunder violates the provisions of any instrument heretofore
executed by the Tenant or any affiliate of the Tenant, including,
without limitation, any so-called radius restriction contained in
any such instrument.
19.23 HBSFT CL•anav: Intentionally Omitted.
ARTICLE Z$: $ECDRITY AND RENT DEPOSITS
20.01 R1fOD2iT OF BECJMITY DEPOSIT: Tenant, shall deposit upon
Delivery of Possession with Landlord the sum set forth in Section
1.1 (R) as the security Deposit, the receipt of which is hereby
acknowledged by Landlord. The security Deposit shall be held by
Landlord for the duration of the term hereof, without liability for
interest, as security for the faithful performance by Tenant of all
the terms, covenants, conditions and obligations of this Lease by
said Tenant to be kept and performed during the term hereof. Tenant
specifically agrees that any deposit held hereunder by Landlord may
be commingled with any other funds of Landlord.
20.02 4sE AND 9m*+aN OF SECURIT DE SIT: Should Tenant fail to
keep or perform any of the terms, covenants, and conditions of this
Lease to be kept and performed by Tenant, Landlord may appropriate
and apply the entire Security Deposit, or so much thereof as may be
necessary, to compensate Landlord for loss or damage sustained by
Landlord due to such breach, without prejudice to its further
rights and remedies. should the entire Security Deposit, or any
portion thereof, be appropriated and applied by Landlord in
accordance with the provisions hereof, then Tenant shall, upon the
written demand of Landlord, forthwith remit to Landlord a
sufficient amount in cash to restore said deposit to the original
sum deposited.
-43-
.(7
Landlord shall have the same rights and remedies for the non-
payment by Tenant of any amounts due on account of the Security
Deposit as Landlord has hereunder for the failure of Tenant to pay
the Minimum Rent. Provided Tenant shall not then be in default,
Landlord shall return the Security Deposit, without interest, or so
much thereof as shall not have theretofore been applied in accord-
ance with the terms of this Article XX, to Tenant within 30 days
after the last to occur of: (i) the expiration. or earlier termina-
tion of the term hereof or (ii) the surrender of possession of the
Demised Premises by Tenant to Landlord. Notwithstanding the fore-
going, if the amounts to be paid by Tenant to Landlord, such as
Tenant's pro rata share of Real Estate Taxes, or the like, have not
been determined as of the expiration or earlier termination of this
Lease, then Landlord may retain such portion of the security
Deposit as Landlord be-lieves in the exercise of Landlord's good
faith judgment is an appropriate reserve against such future
liability of Tenant and return only the balance of the Security
Deposit pending the final determination and payment of all such
amounts by Tenant to Landlord.
If Landlord conveys Landlord's interest under this Lease, the
Security Deposit (or any part thereof not previously applied in
accordance with this Article XX) will be turned over by Landlord to
Landlord's grantee, and, if so turned over, Tenant agrees to look
solely to such qrantee for proper application of the Security
Deposit in accordance with the terms of this Article.., and the
return thereof in accordance therewith. The holder of a mortgage
on property which includes the Demised Premises shall not be
responsible to Tenant for the return or application of any such
Security Deposit, whether or not it succeeds to the position of
Landlord hereunder, unless such Security Deposit shall actually
have been received by such holder.
20.03 RENT DEPOSIT: Tenant, shall deposit upon Delivery of
Possession with landlord the sum set forth in Section 1.1 (L) to be
held and applied to the first month's rent due under this Lease.
ARTICLE XXIf TENANT COVENANTS EASEMENTS
21.01 TENANT COVENANTS: Notwithstanding anything to the contrary
contained herein, this Lease is subject to and made on the
understanding that Landlord has granted and/or will grant certain
restrictions and exclusive use covenants to other tenants of the
Shopping Center (herein the "Tenant Covenants"). Tenant
acknowledges that Tenant's use and/or occupancy of the Demised
Premises in violation of any current or future Tenant Covenants
would subject Landlord to substantial damages and as such Tenant
acknowledges and agrees that any such violation by Tenant of any
such -Tenant Covenants shall constitute a default hereunder
entitling Landlord to cancel this Lease or enjoin Tenant from
violating such Tenant Covenants, or exercise any of the remedies
stated in Article XIV hereof and any other remedies available
-44-
7-1
under the law of the Commonwealth of Pennsylvania. Nothing ed in
on 2'
shall be construed to Tenantnto expand ithesuseirest ictions set forth in se tion 1.1 (m)
hereof.
21.02 EaBE NTS The Shopping center is and/or may be encumbered
and/or benefitted from time to time by certain easements,
development and operating covenants, and similar agreements.
Tenant agrees that it shall abide by any such agreement, including
any such agreement as may be amended from time to time in
Landlords sole discretion. Landlord shall have the right to enter
into and/or terminate any such agreement in Landlord's sole
discretion.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Lease as of the day and year first above written.
Signed, Sealed and Delivered
in the presence of:
(58/92)
LANDL40RD:
SILVER SPRING CENTER LIMITED
PARTNERSHIP
By: ABS DEVELOPHIMT COIF
Its: PABTng
By:
P ich
Its:Execsda Vice President
TENANT: 4 -1' 1 B C
Its:
-45-
. :,.,
f'
i'
i
• • • H?IHIT 71-+
LEGAL DESCRTPTTON 0 SHOPPrrrr CENTER
6
LEGAL DESCRIPTION
r:
A.H.S. - 53.2436 ACRES
BEGINNING at a point on the Northern right-of-way
Route oil (Carlisle pike) ection
right-of?way line of at the inters line o. U.S.
right-of-wa U•S.Route jr11 (Carlisle Pike) of the Northern
along the yEaster?f Tiaffie Route 1114 (Hogestwn and
Road); Eastern
(Hogestown Road) on a curve,°curvingltonethef Traffic )' t•ence
28.51 feet Route rl_
9 :
same North ' 19^ da ° length of 226.65 feet to -a t of t. a radius o
to agrees 17 minutes 30 seconds West, a distance of
minutes 39 seconds thence along same North 10 de
thence aloe west, a distance of 202.24 feet grees <5
distance g same North 19 degrees 17 minutes 30 dsaWeoint;
Of 245.00 feet to a
Point or, t line of Sporting Green Drive; thence, along theu secSoutherng -way
way right-of =
line of een Drive, North 70 degrees 42 minutes
seconds East Sporting , a Gr distance Of 116.56 feet to a
same,on 30
feet an a curve, curving to the left, having point; thence along
arc length of 204.31 test to a 9 a radius of 330.00
Eastern right-of-way line of s point on the
and
Eastern right-of-wa Porting Green Drive; the DriveNorthe3
14 minutes 10 Secondsl East of apdistancerofn225.06, f et to sadPo the
thence along sameame g?ees
distance of 5,fa North to a degrees 31 minutes 32 seconds East$ a
curving to the left, having apradiustofn325 along
eet me on a lunge, ar: of 217.34 feet to a point; thence along same, North 03 degrees length
minutes 45 seconds West, a distance of 404.46 feet to
thence along same on a curve, curving to the right, having aradius
of 275.00 feet a P°-nt;
alon , an arc length of 236.97 feet to a point; thence
g same, North 46 degrees 17 minutes 35 seconds East, a distance
of 25.94 feet to a point on the Western line of lands of Sporting
Green Associates; thence along lands of Sporting Green Associates,
South 43 degrees 42 minutes 25 seconds East, a distance of 463.00
feet to a point on the Southern line of lands of Sporting Green
Associates; thence along the Southern line of lands of Sporting
Green Associates, North 70 degrees 59 minutes 50 'seconds East, a
distance of 327.60 feet to a point on the low water mark of the
Conodoguinet Creek; thence along the low water mark of
the
Conodoguinet Creek, South 60 degrees 02 minutes 02 seconds East,a
distance of 86.53 fast to a point on the Western line of lands now
or late of Christian E. and Sarah E. Thomas; thence along the
western line of lands now or late of Christian E. and Sarah E.
Thomas, South 00 degrees 59 minutes 04 seconds West, a distance of
338.50 feet to a point on the Southern right-of-way line of Creek
Road; thence along the Geuthern riyhL-vl-way line of vreex Hoa°,
North 83 degrees 35 minutes 39 seconds East, a distance of 364.19
feet to a point; thence along same, North 78 degrees 43 minutes 51
t
aeeonoz, Last, a .lielanue of S1.4v feet to a point on the Western
right=of-way li'- of Silver Drive; thence r ing the Western right-
of-way line of-- ver Drive, South 13 deq• 33 minutes 05 seconds
neat, o a:.La.._, jr 66%.#* tees to a point ?n the Nortnern right-
of-way line of Circle Drive; thence along the Northern right-of-way
line of circle Drive, South 86 degrees 18 minutes 57 seconds West,
a distance of 210.48 feet to a point on the Western line of lands
now or late of James Pagliaro extended; thence along the Wester:;
line of lands 'now or late of Jame's Pagliaro, South 00 degrees 46
minutes 57 seconds West, a distance of 382.87 feet to a point on
the Northern line of lands now or late of the Silver Spring
Community Fire Company; thence along the Northern line of lands now
or late of the Silver Spring Community -Fire Company and the
Northern line of lands now or late of Richard L. Radabaugh, Sout.
88 degrees 31 minutes 30 seconds West, a distance of 400.74 feet*e
a point on the Western line of lands now or late of Richard L.
Radabaugh; thence along the Western line of lands now or late of
Richard L. Radabaugh, South 00 degrees 59 minutes 04 seconds West,
a distance of 157.69 feet to a point on the Northern right-of-way
line of U.S.Routs ill (Carlisle Pike) ; thence along the Northern
right-of-way line of U.S.Route ill (Carlisle Pike) on a curve,
curving to the left, having a radius of 5,779.65 feet, an arc
length of 252.33 feet to a point; thence along same, South 85
degrees 30 minutes 30 seconds West, a distance of 227.77 feet to a
point; thence along same, North 84 degrees 29 minutes 30 seconds
West, a distance of 30.00 feet to a point; thence along same, South
85 degrees 30 minutes 30 seconds West, a distance of 547.64 feet to
a point, said point being the place of beginning.
CONTAINING $3.2436 acres.
Excepting therefrom the following described parcel, known as the Wal-Mart
Tract.' or-110t !, /{':
. saa/•L ot.147t19•tf0f
a/,1,?irr tsutt
?' tto't 171 - t
1tC2xMtxa ae a potAx on tae xorrli•rf+ rtgne-et-vay lln• at
orn Or it 0.2.Joutw 11 byte
11.1.1Reut• tie sold got?,,: 1.Lnq the tovtsr•?srtof
: easelaa a.lonq U• Torc.darn el4ntras lvs of 1,771.63 fa•% and an
/t
;-,a? cyrvlriq to the tact, na Lnq ?a"•c• eontlnalnq elan Y au•.
cast lonq%h of 107.74 fast eo a ptnel Veet. a dlse.anaa •t 17.11
ouC3 t1 drgr•sa 1a aLnut•o )O aoeendslareal /f 1, erione• aloM Out
s us 1•tt, aerlr9•a radlus of f0•ao
t a•C to the ldvthaaatarn as R`a c? of Out ?anc• aonL lnu•LnQ 'Lml parcel I1 W 4 oa of 71T^, o•11f 71
teat an ?n .14 twc w • Oe el as
alnut•s so esaanda vest, a aistan
14414 If
d asa length ntr 11 sonclnuLnq alor.q 044's.
along sacs, xorV4 Oa do g taaa i9 11t f !
l Viet. a 414 pn?tes rodt 4141+"'•`e
of 160.00 test ca a to nas
degtaa• 10 aLnvtas 70 s•as
Lee Ilt anancs alenq Let /s 111• tollovi[q vest. S liavnae
11 varLa 04 degrees 71 aLnvtas 70 seaanas
at 161.07 teat.
t1 Marta 11 Agrssa 70 alnacN 70 aegenda v?av. a d fLanae
at 000.11 Nat, hest, a 6.l arwflN
7) south 00 Agrees 00 LLRewa 00 saaand+
at 46'10 94et1 00 ainutss 00 •saseels LLet, a 41,8%a o
41 NutA to olomsa
vest. • llscs+raa
at 224.!1 tees. AO ssaanas
f1 faoreal 00 swrses 00 aL7lates a alsaal+a•
of 77.71 S6et1 0o atnutaA q0 a4esnds Last, s
t) sou%h,tO 01TV"
of 171.01 loq%ia 00 aSnvNS 00 seaanda vest, a "I"AASs
71 ofu77.71 rest, dtAtIA!"'
01 South to dagrrss o/ 1100% 'on the westernttLjAt-qt•raY
at Milt 9101619
tRlr•t
fain, along the v41t4rn Ttgat-41-"Y 11ns of 111vat Ortva, louts
• dlswnea of 116.7/ l?iAt?
17 ds1rase 19 %LAU%$$ 01 teconda t4str esa• Tagli or ets of llasot
h to s ee asa
ne Jnv??n?
ovl of latetof OT 411 ro 1004eA to to s 90
110.16. gal, 7 seeends vest,
alo ,Ielonds n901
seconds vest. 4 4Ne to 00 da?asa /t alnutes $
eontinuing along asa•, the worth*" L* Of w nd nOV 1sw aloAq a dLstance of )11.17 its,, .'Lo inanll tavnsnlT ftr• Ce+Tan
CC ea• 1LSvee I?tlnq To t IL%Ttt 1TtLn0
nds a H i
A Lina of Is adnaa
soatf? 11 doveso 71 al Autos 10 N
nd %te
end Ittn4rd L. Aadasa . 9o or at
riot, Rertf+H•Cadn r•n
00,74 test to %A* a7 dagrsssu7tl StAt
a llsunas of 40.7 Ou
aionq we "rest la. Mo -lost to a qe
Taroot Itl hare' d ats.Aas a Of ! 71.10 cos 10 ascends vast.
10 seconds rise. • vac 70 aLav aU M seas tovea 04
rontl.nutnq L-10" 9419 togtrn t! dwrne1A41+M
I ClAtAj%ce of 101.91 Nstl ?L??, a,dlstana+ It 110.17 I v of
d ass it a.LMU"0 90 saeond =8 1611, Usy a t Lttt.
potncl taenea lrl a CUT" _vQ6i'at 71 jg ?Kg LttCi
m test am Ln P-0 l
•. 111 1 M'! ?s 6?+ reeiy,bq ?.?"??.
vo7rf7s>'t)ro, , 1 ,ravt
i -
P.$$THTT B '
?IARD-??RK the work Landclassifiedlord's
is
rTenantrsbWorkHrein. All
8toref on
1• Aluminum and glass door single acting 3-9-011 X 71-0
centered in storefront.
2• Aluminum storefront framing with 1/4" clear lass from
floor line to 101-0" above the floor line. g
Interior Fi^tshea
1• Demising partitions: 3-5/8" metal studs at 16" o.c. with
primed
fire code gypsum board
d
o
,
an
c
at
painted with one
coat of white paint.
Interior gypsum
partitions: 3-5/8" studs at 16" o.c. with 1/2" board
on sales
location
Exhibit B
All bock walls din and
ar
furr
d
ea
e
be
out and covered with 1/2" gypsum board, ready for
Tenant's paint. Opening and do
or shall be provided in
drywall partition between sales and stock a
reas.
2. Concrete floor, troweled smooth (no finish flooring
materials).
. 3• Vinyl composition tile in toilet room.
4. Commercial grade duty white suspended acoustical ceiling
the and white metal grid
t
1
"
a
10
-0
A.F.F. in the sales
area only and an 80-0" A.F.F. ceiling height in bathroom.
5• One 31-0" X 61-8" hollow metal insulated door
(Painted)
'and frame at rear, with panic h
ardware.
Eath r? (6? x 6,)
1. Complete with fixtures, including water closet, lavatory,
toilet tissues holder
li
ht fi
,
g
xtures And exhaust fan, as
shown at location #2 on Exhibit B-1.
2• one 311-0" X 6-#-8" hollow core wood door with a privacy
latch.
3• Complete with handicap accessible fixtures and
accessories including grab ba
t
r a
toilet.
4• Bathroom walls of 1/2" gypsum wallboard, ready to paint.
5.
i
Water service to tenant space bathroom (3/4"). `
6.
i
One strip type fluorescent light fixture with lens.
Tenant agrees as follows;
servic411 e loading and unloading shall be through the rear entrance
entry specified b ord.
D All garbage and refuse shall be kept y landlord.
Demised Premises that has in a container
the o a lid ca
peeing and shall capable of totals within the
prevent vermin be kept in such a sanita y fitting over
insects and offensive odors. condition as to
3) Tenant shall not burn trash or garbage of any kind in or about
the Demised Premises.
4) No radio
device , television or other comet
shall be installed by Tenant on the roof
or common area of the Shopping Center without ?Landl d sic nsent
subjective discretionhich consent shall be in Landlord's sole and
5) No loud speakers, television, phonograph,
making device may be used in such a manner as to be heard outside
the Demised Premises without Landlord's consent thereto other noise
which consent shall be in
writing,
discretion. Landlord's sole nin
subjective
6) Tenant shall maintain a temperature sufficiently high to
prevent freezing of water in pipes and fixtures.
7) Tenant and Tenant's
vehicles only in those employees shall park their cars and other
areas designated
Landlord, and landlord s
hall have the for that purpose by the
impose fines Upon Tenant or to tow such carsgor?Other veh; vehicles that
fail to comply with this regulation at Tenant's. sole expense.
8) Tenant shall install and maintain fire extinguishers per local
and state codes.
9) Tenant shall be allowed to hold a. Grand Opening Promotion for
a period of two weeks after the commencement pate, which shall
include the display of the large "Bike Line" balloon.
SION CRITERIA
SILVER SPRING COMMONS
SILVER SPRING, PENNSYLVANIA
I. OENERAL:
The following sign orfterls h00 been astsbllohsd for the purpose of.dwdoping uniform, highly
visible, aesthetically glassing store 81911191 And resole to hermunlte with and compliment the
shopplno center's building material,
A. Each Tenant will Idsntlfy its store will) Landlord approved signs.
5. Tenant will provide at its expense two Copies of drewinge of 118 p10Pa10d den. Sign
drawings shall Include a scale showing Individual lettering height and 1ute1 copy length, 6p
fn
cgnOlructlon, installation diagram , malsrl0l Information end color scheme shell also be
Indicated, isapproval, Upon review, Landlord will notify Tenant Or sign mmtvloulurer of approve, of
d
lexPProv
C. All Tenant signs will be designed and Installed at Tonent's 9341711180. All signs shall meet
rlqulremente and 1peclllaetlon/ 801 forth In the Landlord's slue criteria.
Please note: It Is the Tonent's rasponllovily to be Informed or slpn ordinances In lilt local
ans. Where governmenlel sign requirements ere more I,tllcllve than Lmdlord'r criteria,
governments[ restrictions will prsvail. Necessity sign permits shall a Landlo d at the
Tenant'/ expense. In some erase, your Von company will Provide ordinance Information at
wall es obtaining necessary sign permits. Tenant will be held IlAbly and bear ell costs for
removal/and or correction of signs; sign Installation and damage to the building bedsuse of
$"no a 1nstalbllon that don not conform with Landlord's sign criteria, Upon Tenant's
departure, Tenant will remove he sign and repair store front sign blank to Its oelglnd
condition.
0. Tenant shell hove sign Installed and operating within ahlty 1001 days of Lease
commencement data.
E, 140lontil, or Regional Temntsl Landlord reserves the right to allow these Tenants to place
•Iheir reglnered sign and trade mark on the Is w s,
11, -FASCIA SIONI
A. TYPE: Individual Channel Lepers Internally I1
lumin6ted.
DIMENSIONS,
1 • Maximum overall height: 90 Inches
2• Maximum overall length: 76% of the front footage of lilt store. (Ill feet for a
• twenty/oat alorefronLl
;,•' Minimum letter height: one Ill loot.
C. CONSTRUCTIONI
1• The 001111911 will be fabricated from ,050 aluminum. All letter shall hove a while
Interior for an even distribution of lighting. The contour of the letter $boll be
approved by Landlord, All 041160 returns 811611 hove a factory finish polyurelharie
coating. IC01or as per Landlord.) SIIv1 trim shall coordinote with loner color.
2. All letters will be (Iced with 9/10" acryllo supplied by the Rohm b Hess Company.
9. Each letter will have a diffused hinting Oifeot lot on Ivan distribution or Illumination.
The neon tubing (Site of tubes (obvant to site of leult) will be is provided by the
Corning Company with EOL oleetrodes. for squall and with a Proper vacuum cold
pressure or neon ties. The 1ron3forntetl powering the lighting system will be 60
m11118mp for Increase Illumination, and will be underrated 0% it, compensate lot
v0118pe fluctuation end Basuto Oven light distribution, The electrodes will be loused
In pyrex spring We units which will be protected born the elements. Secondary
wiring will be eccomnlishod by prone, high tension cable and Ste-Con fasteners, All
wlrlnp shall be remote. All electrical mull be U.L. Approved and meet All local and
•81816 codes.
0, BALANCE; J ...
.1. VerUOeh Vnteea styllled by deeign, Copilot letters will be mpsoed so there Is on equal
border on lop end bottom of each later with em?nar als
l
i
h
h
o
etters even w
t
t
e
bottom of the capital letter.
1. Horl=onuh Letters will be evenly balanced from midpoint of the sign.
~.
0. Lo0oa Mutt fit within the 36" height requirement.
j E.
I OTHERt
I 1, No ftuhing motion nor other mechanic at animation will be permitted.
{ 2. Tensnt's Won must be kept glean atJ ht good operating condition ?t $11 times at
TenenYe expense.
III. MOVNT•INOv
A. Mounting breokets Pre to be stainless stool festvnae to prevent eulninp of rugim.
0. Mounting brackets ale not to be exposed or be seen.
C, 619111 Pre to be mounted for bird control.
IV, UND611 CANOPY 810N8:
A. Under canopy aluminum sign boom to be Installed by Landlord. Sign boss will be lour 141
feat In length end externally lit with existi
d
ng un
er canopy lighting,
E. lenanl to Instsli individual vinyl composition fallen with a'pesl end stick' adhesive
looking. The m"Imum height of each loiter will b
i
e s
x 101 Inches and all letters will be
Pinions /17.1111 In color.
C. The sign boss must be at Wet forty 1401 degrees prior to applying lettae,
rM1f b.rd
TENANT'S WORK
APPROVAL PROCEDM:
The Landlord will provide Tenant with scale drawings showing the
general features of the Demised Premises and locations of toilet
room, air ducts, electrical outlets, and sprinkler system (if
installed).
Tenant shall supply Landlord with Tenant's interior working draw-
ings and plans prior to making any alterations or improvements to
the Demised Premises. The Landlord reserves the right to approve
such plans for the purpose of insuring such planned changes will
not overload the existing electrical system, degrade the air flow,
sprinkler system, or weaken the structural integrity of the Demised
Premises or otherwise be detrimental to the Demised Premises or the
adjoining stores in the Shopping Center, and to make sure that such
plans conform to the architectural design standards of the project.
Such approval shall not be unreasonably withheld and shall be
promptly responded to by Landlord, Landlord's contractor and/or
architect.
All Tenant's work shall be at Tenant's expense.
Work undertaken-by Tenant shall be handled in the following
manner.:
a. Structural alterations such as plumbing, electrical work,
additional walls 'or bathrooms, vents, grease traps etc., may be
awarded to any operating licensed contractor approved by state or
local authority and whose livelihood is derived primarily from
such work.
b. Construction personnel hired by Landlord may be used by
Tenant, at Tenant's expense, to complete some or all of Tenant's
interior upfit, providing such additional employment will not
conflict with the Landlord's completion of the Shopping Center
and Tenant enters a separate agreement with the contractor.
Landlord will not be responsible for or obligated to Tenant or
contractor to intercede on either parties behalf, should disputes
arise over work or payment thereof.
TENANT ADDITIONS:
The following work, should Tenant desire, shall be done at
Tenant's expense.
1. Installation and service cost of telephone.
2. Installation of a intercom, radio or T.V. and associated
wiring.
3. Ceiling light covers not standard to project.
4. Display window platforms, elevated floors, room partitions
or special rooms.
5, store signs.
6. Automatic doors.
7. If approved, any special exterior fascia treatment, and any
atained,'etched or covered glass or doors.
8. Complete plans showing all details of interior design,
electrical and mechanical items which affect Landlord's
work, if required by Landlord in order to prepare
preliminary plans, including special venting or air handling
equipment necessary for tenants occupancy and use.
9. All interior walls and curtain wall within the Demised
Premises except as provided by Landlord's work.
10. All signs in or on the Demised -Premises including
construction, furnishing and installation. No sign shall be
erected without prior written approval of the Landlord or
Landlord's architect.
OTHER: Tenant may add to this list at Tenant's discretion, so long
as any such improvements are coordinated with the Landlord
beforehand.
Exhibit B
PURCHASE. AND SAIZ AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and
executed this 28th day of June, 1996, by and between the Silver Spring Center
Limited Partnership, a Connecticut limited partnership with offices at Suite 2575,
One Atlanta Plaza, 950 East Paces Ferry Road, Atlanta, Georgia 30326 (the "Seller")
and Silver Spring Commons Holdings, Inc., a Pennsylvania corporation with offices
at Suite 200, 259 Radnor-Chester Road, Radnor, Pennsylvania 19087 (the 'Buyer").
WHEREAS, Seller is the owner in fee simple of the real estate more
particularly described on Exhibit "A" attached heretu and incorporated herein by
reference, the buildings, improvements and structures thereon (except for the
buildings, improvements and structures located on that part of the Real Property
which is subject to ground leases) and the easements, access rights, and
appurtenances and hereditaments thereto (all being hereinafter collectively referred
to as the "Real Property"); and
WHEREAS, Seller is the owner of the personal property more particularly
described on Exhibit 'B" attached hereto and incorporated herein by reference,
located on and used in connection with the Real Property (such personal property
being hereinafter collectively referred to as the 'Personal Property"); and
WHEREAS, the Real Property and the Personal Property comprise a two
hundred sixty nine thousand three hundred two (269,302) net rentable square foot
shopping center on thirty-seven and nine hundred four thousandths (37.904) acres
more or less which are located on the Northeast corner of United States Route 11 and
Pennsylvania Route 114 in Silver Spring Township, Cumberland County,
Pennsylvania and known as Silver Spring Commons; and
WHEREAS, Seller is the landlord under the tenant leases and ground leases
affecting the Property, which ground leases and tenant leases (there are no subleases
known to or approved by Seller except as permitted in the Amendment of Lease dated
July 14, 1994 between Seller as Landlord and M.J. Todd, Inc. as Tenant) are listed
and described on Exhibit "C" attached hereto and incorporated heroin by reference
(the "Leases"); and
WHEREAS, Seller has entered into and is the obligee under certain service,
supply, maintenance, leasing and management agreements if any affecting the
Personal Property and the Real Property which service, supply, maintenance, leasing
and management agreements are listed and described on Exhibit "D" attached hereto
and incorporated herein by reference (the "Contracts'); and
WHEREAS, Seller is the owner of certain rights and benefits relating to the
Property, including all development rights, permits, licenses, warranties (including
but not limited to the roof warranties contained on Exhibit "L" attached hereto and
incorporated herein by reference), guarantees, indemnities and deposits, (these rights
of Seller's counsel required by Section 6.5(aXviii) hereof may be rendered under
Connecticut law.
11.6 Time is of the Essence. Time is of the essence with respect to each and
every provision of this Agreement.
11.7 Performance on Business Days. If any date for the occurrence of any
event or act under this Agreement falls an a Saturday or Sunday nr legal holiday in
the Commonwealth of Pennsylvania, then the time for the occurrence of such event
or act shall be extended to the next succeeding business day.
11.8 Entire Agreement. This Agreement, together with all the Exhibits
attached hereto and incorporated by reference herein, constitutes the entire
undertaking between the parties hereto, and supersedes any and all prior
agreements, arrangements and undertakings between the parties.
11.9 Counterparts This Agreement may be executed in any number of
identical counterparts by the parties hereto, each of which shall collectively constitute
one agreement, but in making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed the day and year above first written, intending to be legally bound
hereby.
SELLER:
SILVER SPRING CENTER
LIMITED PARTNERSHIP
By: AHOLD REAL ESTATE COMPANY
Its only gener partner and its
duly autho gent
By Name: Q. dA4,p J
Title:
BUYER:
SILVER SPRING COMMONS HOLDINGS, INC.
17
By;
Name: GU/llucM^ F /?'1 `
Title: ,??? ?'
Exhibit C
• APR••29-1999 1046 MDRG4V LEWIS PHILADELPHIA
215 963 5299 P.02i12
ASSIGNMENT AND ASSUMPTION OF LEASES
Q??? This Assignment and Assumption of Leases ("Assignment") is entered into as of
this ? r'^ day of January, 1999, by SILVER SPRING COMMONS HOLDINGS, INC., a
Pennsylvania corporation, with an address c/o 239 Radnor-Cheater Road, Suite 200, Radnor, PA
19087, Attn: Kathleen Hands ("Assignor"), and EASTERN RETAIL HOLDINGS LIMITED
PARTNERSHIP, a Delaware limited partnership, with an address of LMRES Real Estate
Advisers, Inc., c/o Legg Mason Real Estate Services, Inc., 1735 Market Street, 12th Floor,
Philadelphia, PA 191,03 ("Atsigna"). For valuable consideration, the parties hereto, each
intending to be legally bound and to bind their respective successors and assigns, hereby
covenant and agree as follows.
A. Assignor is the owner of that certain real property known as Silver Spring
Commons Shopping Center situated in the Township of Silver Spring, County of Cumberland,
Pennsylvania (the "Real Property'). The Real Property is more particularly described on Exhibit
,g attached hereto and made a part hereof.
B. In connection with the contribution of the leasehold estate in the Real
Property pursuant to that certain Contribution Agreement, dated as of December 30,1998 (the
"Agreement'), by and among Assignor, as contributor, and Assignee, as acquiror, Assignor has
agreed to assign its interest in the leases pertaining to the Real Property to Assignee, and
Assignee has agreed to assume and accept the same.
NOW, THEREFORE, in consideration of the premises, the promises and conditions
contained herein and in the Agreement, and other good and valuable consideration in hand paid
by Assignee, to Assignor, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Assignor hereby assigns, transfers and sets over unto Assignee, and
Assignee hereby accepts, all Assignor's rights, title and Interest in ahd to those certain leases,
which are listed In Exhibit 'B' attached hereto and made a part hereof ("Leers."), which
Leases pertain to various portions of that certain Real Property which Assignor has
contemporaneously herewith conveyed unto Assignee. This Assignment includes () all
sureties and guaranties of the Leases, (ii) the right to collect from all tenants under the Leases
(collectively, "Tenants') all rents and other payments whether heretofore or hereafter payable
(to be applied as set forth in the Agreement), (Ili) tha right to enforce all obligations of the
APR-29-1999 1847 Nt7RGRV LEWIS PHILADELPHIA 215 963 5299 P.83i12
Tenants under the Leases and all sureties and guaranties, and (iv) all security deposits paid by
the tenants under the Leases.
2. Assignee hereby assumes and agrees to perform all agreements and
obligations of the landlord with respect to the Leases arising on and after the date hereof.
However, Assignor, and not Assignee, shall be responsible for the observance and
performance of all agreements and obligations of the landlord with respect to the Leases
arising prior to the date hereof.
3. '.Nothing herein contained is intended to create agreements or obligations
of the landlord to any Tenant under any Lease.
4. Assignor shall defend, protect, indemnify and save harmless Assignee
from and against any and all liabilities, suits, actions, losses, damages, costs and expenses,
including without limitation counsel fees, suffered or incurred by Assignee resulting from or
relating to any failure by Assignor to observe or perform any of its agreements or obligations
under the Leases prior to the date hereof. Assignee shall defend, protect, indemnify and save
harmless Assignor from and against any and all liabilities, suits, actions, losses, damages,
costs and expenses, including, without limitation counsel fees, suffered or incurred by
Assignor resulting from or relating to any failure by Assignee to observe or perform any of its
agreements or obligations under the Leases on or after the date hereof.
[Execution Page Follows]
M-V25D8.1
.APR-29-1999 1047 MOROAH LEWIS PHILADELPHIA 215 963 5299 P.04i12
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date first above written.
SILVER SPRING COMMONS HOLDINGS, INC.,
a Pennsylvania corporation
By: OA
Name: Dgvto d Zrj.,oct
Title: V(m e,"s1,oz jv-
EASTEMN RETAIL HOLDINGS LIMITED
PARTNERSHIP, a Delaware limited partnership
By: L.MRES Real Estate Advisers, Inc.,
its general partner
By: a4rAvj d'
Name: kvtd v Trs?omo
Title: Vtcc t°trnUvr
PHIMP11.1 -3-
APR-28-1999 1048 MORGIN LEWIS PHILADELPHIA 215 953 5299 . P.05/12
EX$TBIT "A'I
nczm7ua.) -4-
APR-29-1999 10:49 MORGAN LEWIS PHILADELPHIA 215 903 5299 P.06/12
SCM9D= b
Legal Description
Lot No. 2
Shyer Spring Commom
All that certain lot, tract or parcel of land situated in
Silver Spring Township, eymborland county, Dennsylvania; bounded
and dsacribed as. follows:
3egituli3&g at a point on the eastern right-of-way line of S.R.
o114, said point being located one hundred eighty and fifty-six
hundredths feet north of the northern right-of-way line of the
carlisle Piks ((S.R. 0011); thence from said point of 8egiaaing, by
the eastern rigbt-of-way line of S.R. 01144 the following four (4)
courses 1), by a curve to the left, having.& radius of nine hundred
twenty-eight and fifty-one hundredths feet (R = 928.51'), an arc
distance of forty-six and nine hundredths feet (A/L a 46.020) 2)
Borth nineteen degrees, seventeen minutes, thirty seconds west (N
199 171 3001 A) a distance of one hundred forty-two and ssvsnty-.six
huildradths feet (142.761) 3) North ten dagreas,.forty-five Minutes,
thirty-nine seconds West (N 106 451 3911 W) a distance of two hundred
two and twanty-four hundredths feet (202.24') a) North nineteen
degrees, seventeen minutes, thirty seconds. West (x 191 171 3011 W)
a distance of two hundred forty feet (240.004) to a point, thence.
by the southern right-of-way line of Sporting Green Drive, the
following five (5) courses 1) North sixty-eight d ees$ fifteen
rtnutos, seven seconds last (N 6e: 2.51 0711 8) a distance of one
hundred sixteen and sixty-seven hundredths feet (116.971) 2) by a
curve to the left, having a radius of three hundred thirty feet (R
= 330.0a'), an are distance of two hundred tour and thirty-one
hundredths feet (204.2i') 3) North thirty-five degrees, fourteen
minutes, tan seconds East (N 39' 141 101, E) a distance of two
hundred twenty-five and six hundredths feet (225.061) 4) North
twenty-nine degrees, thirty-one minutes, thirty-two seconds zest (H
29' 311 3211 2) a•distance of fifty and twenty-five hundredths feet
(50.291) 5) by a curve to the left, having a radius of three
hundred twenty-fiva feet (R = 325.000), an arc distance of two
hundred seventeen and thirty-four hundredths feet (A/L =
217.341)to a point; thence by the southern right-of-way line of
sporting Green Drive and by Lot No. i North three degrees, four
minutes, forty-five seconds West (N 03' 04' 4511 W) a distance of
four hundred four and forty-six hundredths •rest (404.491) to a
point) thence. by Lot No. i the following five (5) courses 1) by a
curve to the right, having a radius of two hundred seventy-five
feet (R = 279.00') an are distance of seventy-nine and fifty-two
hundredths feet (A/L = 79.521) 2) Due East (N 90' 001 00" E) a
distance of two hundred forty-one and ninety-nine hundredths fast
(241.991) 3) South forty-three degrees, forty-two minutes, twenty-
five seconds East (e 431 421 2511 E) a distance of one hundred twenty
and ten hundredths feet (120.101) 4) South eighty-six degrees,
twenty-four minutes, forty-five seconds East (9 e6' 241 4511 E) a
distance of oha-hundred Seventy-four and hinety-two hundredths feet
Mini? "All BOOK 143 AW 654
APR-28-1999 10:49 . MORGAN LEWIS PHILADELPHIA 215 963 5299 P.07/12
SCHEDULE A COIWTTJMLrD
(L74.921), (erroneously shown an Plan as North eighty-six degrees,.
twenty-five minutes, forty-aight seconds East a distance of one-
hundred seventy-four and ninety'-one hundredths feet) 5) North
eighty-four degrees, twenty-two minutes, seven seconds East (N 64'
22 07" B) a distance of two hundred twenty-saven and thirty-saven
hundredths feet (227.371)to a point at or near the top of bank of
the Conodoguinst Creek; thence down said crook south sixty degrees,
two minutes, two seconds East (e e0- oz' call x) a distance of.
eighty-six and fifty-three hundredths feet (26.531) to a point;
thence by land now or late of Christian and Sara Thomas South zero
degrees, fifty-nine minutes, four seconds West (S oo4.s9' 04" 11) a
distance of three hundred thirty-eight and fifty hundredths feet
(33&.509) to a point on the coutherrk right-of-way Line of Creek
Drive; thence by said right-of-way the following two (2) courses 1)
North eighty-three degrees, thirty-five minutes, thirty-nine
seconds East (N 83' 35' 39" 8) a distance of three hundred sixty-
four and nineteen hundredths feet (364.19') 2) North seventy-eight
degrees, forty-throe minutes, fifty-one seconds East (N 72' 43' $1"
E) a distance of thirty-one and forty hundredths goat (31.404) to
a point; thence by the western right-of-way line of silver Drive
South thirteen degrees, thirty-three minutes, five seconds East (S
130 33' 05" s) a distance of six hundred seventy and ninety-six
hundredths feet (6709991) to a point; thence by Lot No. 7 the
following eight (8) courses 1) Due Wast (N 9o- 00' Coll W) a distance
of one hundred ninety-nine and eighteen hundredths feet (39941&')
2) Due North (N 00' 00' 00" S) a distance of seventy-seven and
seventy-nine hundredths feet (77.791) 3)'Due West (2I 90 00' Co" W)
a'dsstance of one hundred seventy-five and sixty-seven hundredths
feet (175.671) 4) Due South (& 00' CC' 00" E) a distance of seventy-
seven and saventy-nine hundredths feet (77.791) 5) Due West (N 90'
091 Co" W) a distance of two hundred twenty and sixty-two
hundredths feet (220.621) 6) Due North (x 09' Go' 0011 Z) a distance
of forty-six and sixteen hundredths feat (45.161) 7) South eighty-
rive degrees, thirty minutes, thirty seconds West (S 05' 30' ;0" W)
a distance of six hundred six and eighty-one hundredths feet
(606.81') 8) South four degrees, twenty-nine minutes, thirty
seconds East (s 04' 291 30" E) a distance of give hurkdred eighty-two
and sixty-seven hundredths feet (562.678) to a point on the line of
Let No. 5; thence by Lot No. 5 and Lot No. 3 south eighty-five
degrees, thirty minutes, thirty seconds west (S 85. 30' 30".11) a
distance of two hundred thirty-four and twenty-seven hundredths
feet (234.271) to a point; thence by Lot No. 3 south eighty-five
degrees, eighteen minutes, forty-five seconds West (s 85 15' 45"
IP) a distance of two hundred forty-seven and seven hundredths feet
(247.071) to a point on the eastern right-of-way line of S.R. Oils,
the place of Beginning. Said tract contains 1,469,627.64 square
feet or 33.74 acres.
Being Lot No. 2 on a Final Limited ResuLdivisio Lots
#1 and #2 Lot Silver Sprinq Comaons as records s of
the Recorder of Deed of and for Cumberland court in
Plar. Book 65 Volume ____ Page 3 ySloxa?
EXHIBIT "A" °"
APR-29-1999 10:50 MORGAN LEWIS PHILADELPHIA 21S 963 5299 P.09i12
SGZi M= A coD
LEGAL DESC IMON
OI3v$ t3ARDEN .
LOT 03, S1L'm SPIM0 COMMONS
SILVER SPRING T WME3 LVCUbMERLA= COM' if
UGlNNWG at It point, said point being the intersection of theNorthem
. ne of the Carlisle Pilm (S.R.0011) with the Eastern line of S.R.0114; thence in curvirls to
Northerly b direction *long the
the l
radius of 928 Sl tcct and an we 13 eugth of 180.56 f a
the let; t, having a r
point, said poiatbdng theinterstxtioa of the Southern line of aS0' Right-nt g1aY
and the x"tam line of SA. 0114; thence along the Right-of-Way the following two (2) ourses daa distancees Southern line of the 50'
1. North 85 degrees 18 minutes 4$ seconds Fast, a distance of 247.07
feet to a point,
2. North 85 degrees 30 arinutes 30 seconds East, a distance of 228.78
foot m a point;'
Thence along the Westem line Of Lot N5, South 04 degrees 29 minutes 30
seconds Fast, a distance of 180.00 feet to a point on tye Northern line of the
Carlisle Pike; thence along the Northern line of the Carlisle Pike, South 85
degrees 30 minutes 30 seconds West, a distance of 433.80 feet to a point, said
point being the place of beginning.
CON' naxG 83,224.3737 square feet OR 1.911 Acres.
ERRIEIT 'W'
. . PPR-29-1999 10 50 MORaRN LEWIS PHILRDELP4lR 215 963 5299 P.03/12
SC?IILB a CORQ'MUED
LEGAL DUCkMON
'TACO l3FI.L 1110T V NOW
LOT 05 OF SMVER SPRING COW40NS
sILVER SPRING TOWNSFIIP, CUMBE MAM COUNTY
PENNSYLVANIA
AL'L' TEAT CERTAIN tract or parcel of land situate on the Northbast Corser of Route
ing, County of
114
Cumberland, Commonwealth ea th of Pennsylvania, moremparticuululy bof Silver ounded- dczcdbt4 as
follows to wit:
BEGUMMO AT A point on the Ndrtbem Right:-a--Way line or the Carlisle Pike, said
polat being S70A0 feet Fast of the intersection of Route 114 and the Carlisle Pike; thence aloa;
I=& of lAt #3 of Silver Spring Commons, North 04 degrees 29 minutes 30 smcndsttast• a
distance of 180.00 feet to a point, said point being on the 50-foot wide axes: easement between
Lot 95 and Let 97 of Silvat Spring Commons. thence along the aforementioned access easement,
North 85 degrees 30 minutes 30 seconds Fast, a distance of 284.06 feet to a point; thence along
a 92.00 foot axes easement for the entrance to Silver Spring Commons from the Carlisle Pike,
South 04 degrees 29 minutes 30 seconds Fast, a disartea of 160.00 feet to It Point; thence on
a curve, curviag to the right, having a radius of 50.00 feet and an'= length of.78.54 feet to
apt con theNorth= Right-of flay line of the Carlislo Pike; thence along tits Northesti Right
of-Way line of the Carlisle VAe, South 85 degrees 30 minutes 30 seconds West, a distance of
142.22 feet to a point; thence along same. North 04 degrees 29 minutes 30 seconds West, a
dktanee of 30.00 feet to a point; thbace along saute, South 85 degrees 30 minutes 30 seconds
West, % ;distance of 91.84 feet to a .point, said point being the PLACE OF BEGUMNG.
BONG MOWN AS Lot #5 an shown on the Final Resubdivision Plar. of Lots #3, #4
and #5, Silver Spring Commons.
CONTAiN1NG 56,361.31 gquaze feet OR 1.294 acres.
.. •• • 7txkiI9IT "A"
6GLK '? ?ie? PAG: 6657
APR-28-1993 10 51
MQRSAN LEWIS PHI!RDELPHIR
91CMU= a CO1VTINm
OUT PARCEL 06
215 963 5233 P.10/12
9EGINNING at a point on the Northern right-ot-way line of U.S.
Routs 11 and the Western line of land now or late of Richard L.
Radabaugh; thence along the Northern right-of-way line of U.S.
Route 11 by a curve, curving to the left, having a radius of
5,779.65 feet and an are length of 146.79 feet to the line of land
of Lot 17; thence along Lot 07 by a curve, curving to the right,
having a radius cf-5O.00 feet and an arc length of 77.43 fret to a
point; thence continuing along. sane, North 04 degrees 29 minutes 30
seconds West,• a distance -of 160.97 feet to a point; thence
continuing along same, North 85 degrees 30 minutes 30 seconds East,
a distance of 165.31. feet to a•point; thence continuing along same
South 42 degrees 22, minutes to seconds East, a distance or 74.10
feet to the Northwest corner or lands now or late of Richard L.
ltadabaugh; thence along lands of Radabaugh, South 00 degrees 59
minutes 04 seconds West, a distance of 157.69 feet to a point, said
point being the place of BEGXMNG.
CONTAINING 41,797.63 Square Feet or 0.959 Acres
E'J.HIHY: "A" BOOT( A3 P?., 65cg
APR-28-1939 10 52 "10RrjPN LEWIS PHIL4DFLPH19 215 953 5299 P.11/12
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MORCAY LEWIS PHILADELPHIA 215 353 5299 P.12/12
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a
lC96: R:?. GAR aAi;?ti not a rw.
19fl5?sxv.r5sw LT09G69GTG G0 :8L s4su'
997Cl'ORCU PI 'ilk 'Q 'v vAQVm AA:9 wnv: tt7hf•7n n0 10 it
TOTAL P.12
ui... ..,... in?o uiIL°
Exhibit D
04/20/1999 14:09 7177302121 CROSSGATES/HARRIS3G. PAGE 02
-• ••••-', •• -• uuuu mnOVn ArOAL 6a:Alt atKSI(;EJ TH- 6i0 964 0830 P.002
>RWI A)4M%M6MM TO LEASE
Tm Fw A1tpo&wTP is made n of dais & day o?P&4.4i y 1997,
by andbeMm MVM17JKG C014b NS H=INGS INC,, a Paoasylvacia
ootposatien,atteaasaY fwmSilva3pingCettterLimitedpumership
Li 3 ord and IflU1,tAS It wnil M3 egad DORCAS A wallAMS, d/b/a Bike
«, r?• tin,
A. Lattd<ordis*sbn&udwdTm=istheuaantun&acerteiulndenttareof
Lease puraasm to w" TewttWm froaa Landlord Store 0-7, muraiaiag
appraogoataellnwo sbasssrsd fore httadred OA squue feet of space in Silver Spring
Com--- - Shopplag Client, ]Viatbsttinbnrg; Paulsylvania (the "pemited Premises") for
a terra commendog ills NesemtI 4,1992 sod expiring oa Jaauay 31,1998 (the
'OripadTerm").
8. Team]: is desisiag of ?exe?eo?rinj is to extend the Lease pursw•mt to
Sections 1.L]. and IA thsru? ia>s?oad itw w sbwTtmwto so exercise, even
d=W&Te=m has nor #m lr m dlocd et last ix mcmths prior vshma notice of
exerdw, u required by mW SeWoa 1.6.
NOW; T MRWF=B, for and in ooasidersdoa of the emttusl covenants and
agreem =hereinooaobenf,atadsnrendiostobelegallybootad,LandlordaadTenant
hereby eoemm?t and agtas ab fioflows:
1. Thepmvisioas of the foregoing 'Background"
section of ttut? mmat at erxby Incorporated into sod made a part of this
FuxAmeadauerx
2. efi 3=Vc as cq naly otbeswise indicated Twin to the
conoaty, acxpa w" and phrases coovd-ed is this First Amendment shall have
the• amaze tmeatsin; end di6sltiaa as as eotiodoed in the Lease,
3. F.xarcise atNam a SSW, Tent; byia execution of this First
Amt narft, earm and eclmoalodga its imention to exercise its
I+w pns? to Sea!=11J. and 1.6 thereof. Landlord hereby
option to extend ebe aaa
adamwledges aced rreagir _Ilia FrnsA mradmatt a+ coatsinuing Teaane's exercise of its
'Vtioa to entcraod the Um m alareWd, u dwsives the requlremertr tbat Tea=t give
Zaadlardwrftten podw aE is ammu of es m caead the Lase u least six
snroAd+s prior to the at?irdssn erf tha Orisma =
4. The Original Term is hereby estended for as additional
period cammmgag not 1,1998 nod ca]aauuy 31, 2003 (such
addidaenl period is henia aled the"ExteteiedZj.
04/20/199g..14:09 -7177302121 CROSSGATES/HARRISEG. PAGE 63
• uuuu mmuvm inner, carAIL D6KrN63 UL 6!O 964 Og3o P.003
S. ?T- - wed ?j i? '? erm P=qn as hereinafter
psoyidal, The scans as oameoas of th` ?t a Estended Term shall be the
same m 5? d ! 04" T?+?epcslug b9n1rm=Reny shall be as is set forthim the hi Term 1 aifollows:? of restatealsot, the Teams Mia)mum Reor during
adad Is 2111!i -1/31/99 SOW.- 53
2111!9 -1/31/00 4700. $32,400.
?11/00 -1/31/01 $2,800. 533,600.
2/1/01-1/31/03 $20900. S34,800.
6. Othor Mwslad Zanma and camimom.
a. Tix sumo ad addnas of the? sadloed as set forth is Section 1.0. of the
Leas we herabyr cbmq d to read a foOmm
40. LAMMOM. Sam c% SP&g Commons Holdings Inc.
St103ynlsiitseVAA Suise loo
M40( stmis, PA 194W
b. Secdoa of 19.6. of the Lme is ber sby rescued in its earlrety so as to read as
follows:
' 19.6 NOTIM AND PAYDri' M1 say notice byTeoant to Landlord
muse be aseved by cadfied marl, postage Prepaid, or by nationally
reeopeiari aaprsss tntil ddivety service, addressed to Landlord at site
dM+gasad for ebe of rear, with copies for John S.
jr., &4,2!9 r-dtmter Road, Suite 200, Radnor, PA
190q a s sasdt ocher address or s?cidresses as Landlord mry desi?nte
from Awe to time bywri zm noeicm Any notic a byLandtord (which may
be firm byLaaford or Landlord's attorney or management company) ro
Teams somet be rrervsd bycatdW mail, postage prepaid, or by nationally
seco/eawd aapeas mtil delivery savim, addressed to Tenant at the
De:atiaei lssmiees, or a such other address or addresses as Tenant may
Am&: a?aee a to *u bywrh=notice to Landlord AD notices
this Sas>oon 19 6 epos delivery or=mpted delivery in accordance with
Vrml otherwise nodal is wrung, Tenant shall pay all
rotor tasarvad hereto and all other earns recruited under this Lease by check
pa" m %be order of LandkuA and shall forward the Tame to Landlord
04/,20/1999 14:09 7177302121 CROSSGATES/HARRISBG. PAGE 04
"•"'• •• •• uuuv ivnovn nGnv GJlfllt J6RY16t4
,. 1'tL:OlU 964 U830 P-004
77. 1
and infidl60 s= W°°' M=Wdedthel:eat 4Zremaint+nmodified
a?i? and Tau= and their mpemve
b. Io tf>t aws as{aw earpies betwam du piariaoni of the Iease aar! the
oEthL firs Ate, tlse prositboos of this Fitat
odpry, Aiueadmeat shall eoetml
6= s T6 acdeo
M lraifa! of this Firx Amaadauat are for roaveaien of
on1. wdtaustp f„re heaoL
this Em AAmochom n VNWJMF, 6d sad Tenant have executed and delivered
?
7?' $rs above written.
IAt`1DI.Om smvunm(;Commmx=,NcS INC
TMANT
??.t? 6E?f?u3e?i/?
B
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Johnson, Duffle, Stewart & Weidner
By: David J. Lanza
I.D. No. 57782
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
LMRES REAL ESTATE ADVISERS, INC., Ua
EASTERN RETAIL HOLDINGS, L.P.,
Attorneys for Plaintiff
COPY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
Cr C? #i8` - CIVIL
THOMAS H. WILLIAMS and
DORCAS A. WILLIAMS,
Defendants
TO: THOMAS H. and DORCAS A. WILLIAMS
26 Bourbon Red Drive
Mechanicsburg, PA 17055
CIVIL ACTION - LAW
You are hereby noted that orl- 1999, judgment by confession was entered
against you in the sum of $121,317.00 he above-captioned case. , I
DATE: tP ` ?7 ' ll
YOU SHOULD TAKE THIS PAPER TO YOb9 VV)YER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR TEL HONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
(717) 240-6200
1 hereby certify that the following is the address of the Defendant stated in the certificate of residence:
THOMAS H. and DORCAS A. WILLIAMS
26 Bourbon Red Drive
MechanirgA 17055
.A I
Attorney for Plaintiff
Johnson, Duffie, Stewart & Weidner
By: David J. Lanza
I.D. No. 57782
301 Market Street
P. 0. Box 109
Lemoyne, Pennsylvania 1 7043-0 1 09
(717) 761-4540
LMRES REAL ESTATE ADVISERS, INC., Ua
EASTERN RETAIL HOLDINGS, L.P.,
Plaintiff
V.
THOMAS H. WILLIAMS and
DORCAS A. WILLIAMS,
Defendants
PRAEC/PE TO SAT/SFy
AND DISCONTINUE
TO THE PROTHONOTARY:
NO. 99-3891 Civil
CIVIL ACTION - LAW
Kindly mark the above-captioned matter satisfied and discontinue this action.
Respectfully submitted,
Attorneys for Plaintiff
INU E COURT OF COMMON PLEAS OF
CMBERLAND COUNTY, PENNSYLVANIA
JOHNSON,`DUFFIE, STEWART & WEIDNER
By:
David J. Lanza
Attorney for Plaintiff
27606
Cn -i
?J U? iJ
LOUIS L. CAPOZZI, JR.,
PLAINTIFF
V.
LATSHA & CAPOZZI, P.C.,
KIMBER L. LATSHA,
GLENN R. DAVIS and
DOUGLAS C. YOHE,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
99-3981 CIVIL TERM
99-3542 CIVIL TERM
97-5584 CIVIL TERM
AND NOW, this. Z day of December, 2000, the argument current
scheduled for January 8, 2001, is cancelled and rescheduled for Courtroom Number 2,
at 9:30 a.m., Wednesday, February 7, 2001. Plaintiff shall file a brief in chambers not
later than Friday, January 12, 2001, and defendants shall file a brief in chambers not
later than Wednesday, January 31, 2001.
Edgar B.
John McN. Cramer, Esquire C(,PjQ3 mq,?w
For Louis J. Capozzi, Jr. Ja - 29 - c>o
Richard H. Wix, Esquire
For Latsha and Capozzi, P.C. ?? Q? r G,Ic.a
Kimber L. Latsha, Glenn R. Davis and
Douglas C. Yohe ?
Court Administrator
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