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HomeMy WebLinkAbout99-04951k 4{':: c" r` 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 WINDSOR PARK SHOPPING CENTERS, LLP, Pfafntiff V. JOHN WHITCOMB and KATHY WHITCOMB, individually and t/d/b/a MIRACLE WEIGHT LOSS CENTER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.9Cf - 11?5'1 CIVIL ACTION - LAW Defendants 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 March 1999 through August 2002 $ 57,855.96 Interest at 6% from March 5, 1999 through May 5, 1999 580.14 5 % attorney fees 2,921.81 TOTAL $ 61,357.91 :124667 JOHNSON, DUFFIE, STEWART & WEIDNER By: ij'L David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 d C-3. ?i N 2 c)z u r=- r o O1 Ch 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 WINDSOR PARK SHOPPING CENTERS, LLP, Plaintiff V. JOHN WHITCOMB and KATHY WHITCOMB, individually and t/d/b/a MIRACLE WEIGHT LOSS CENTER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW IN EJECTMENT Pursuant to the authority contained in the warrant of attorney, a copy of which is attached to the Complaint filed in this action, I appear for the Defendants and confess Judgment in ejectment in favor of Plaintiff and against the Defendants for possession of the real property situate at 5202 Simpson Ferry Road, Suite 106, Mechanicsburg, Lower Allen Township, Cumberland County, PA. JOHNSON, DUFFIE, STEWART & WEIDNER By: David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 :124687 ti r? C Lu C' N L crt of U 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 WINDSOR PARK SHOPPING CENTERS, LLP, Plaintiff V. JOHN WHITCOMB and KATHY WHITCOMB, individually and t/d/b/a MIRACLE WEIGHT LOSS CENTER, Defendants Attorneys for Plaintiff Windsor Park Shopping Centers, LLP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW IN EJECTMENT The Plaintiff, WINDSOR PARK SHOPPING CENTERS, LLP, is a Maryland limited liability partnership with offices and a principal place of business at 100 Painters Mill Road, Suite 900, Owings Mills, Maryland 21117-4528. 2. The Defendants, JOHN WHITCOMB, and KATHY WHITCOMB, are adult individuals trading and doing business as MIRACLE LOSS CENTER with a place of business at 5202 Simpson Ferry Road, Suite 106, Mechanicsburg, Pennsylvania 17055. 3. On or about June 15, 1997, Plaintiff and Defendants' predecessors entered into a Lease Agreement for the premises located at 5202 Simpson Ferry Road, Suite 106, Mechanicsburg, Cumberland County, Pennsylvania, a true and correct copy of which is attached hereto as Exhibit "A." 4. On or about July 27, 1998, Plaintiff and Defendants John and Kathy Whitcomb entered into an Assignment of Lease by which the Whitcombs accepted all duties and liabilities under the aforesaid Lease. A true and correct copy of the aforesaid Assignment of Lease is attached hereto as Exhibit "B." 5. Said Lease Agreement (and the Assignment thereof) has not been assigned by Plaintiff. 6. No judgment on the Lease Agreement has been entered in any jurisdiction. 7. The aforesaid Lease requires Defendants to pay unto Plaintiff the sum of One Thousand Two Hundred Eighty Dollars ($1,280.00) per month for the first two years of the Lease with subsequent amounts due as set forth in §1 of Exhibit "K. 8. Defendant has failed to make the required monthly rental payments from and after March, 1999. 9. As a result of Defendants' failure to make the monthly rental payments, the remaining monthly payments (through August, 2002) have become immediately due and payable. 10. Pursuant to the aforesaid Lease Agreement, Defendants are required to reimburse Plaintiff for Plaintiffs attorney fees in the amount of 5% of the unpaid balance. 11. There is justiy due and owing to the Plaintiff from the Defendant on account of the aforesaid breach the sum of Sixty One Thousand Three Hundred Fifty Seven Dollars and Ninety One Cents ($61,357.91) calculated as follows: Unpaid rent from March 1999 through August 2002 $ 57,855.96 Interest at 6% from March 5, 1999 through May 5, 1999 580.14 5 % attorney fees 2.921.81 TOTAL $ 61,357.91 12. Plaintiff has demanded payment from Defendants, but Defendants have neglected and refused and continue to refuse to pay the same or any part thereof. 13. Plaintiff is entitled to immediate possession of the leased premises at 5202 Simpson Ferry Road, Suite 106, Mechanicsburg, Pennsylvania 17055. WHEREFORE, Plaintiff demands judgment against the Defendants for possession and damages In the amount of $61,357.91 plus costs and interest and such other relief as this Court deems just and appropriate. Respectfully submitted, JOHNSON,DUFFI/E, STEWART & WEIDNER BY: // M David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff Windsor Park Shopping Centers, LLP :124686 e4t 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 8 Pa.C.S. §4904 relating to unsworn falsification to authorities. WINDSOR PAKZHOPPING CENTERS, LLP By: Dated: Exhibit A LEASE This LEASE, Made June 1 ) , 1997 by and between WINDSOR PARK SHOPPING CENTERS PARTNERSJIIP, hereinafter called "Landlord" and RICK P. HAWKINS AND CYNDT" TAYLOR, hereinafter collectively and individually called "Tenant". That in consideration of the mutual promises herein contained, the Landlord hereby rents to the Tenant, and the latter does hereby rent from the former, the premises described as 5202 Simpson Ferry Road, Suite 106, Mechanicsburg, PA 17055, containing approximately 1280 square feet, said premises being outlined in red on the attached Plat marked Exhibit "A", and made a part hereof, (and hereinafter called the "Leased Premises" or the "Demised Premises" or the "premises") for the term of five (5) years beginning on the commencement date as hereinafter defined. The occupancy date, whenever used herein, shall be the earlier to occur of the following: (a) the date when the premises are ready for occupancy; or (b) the date when the Tenant shall take possession of or occupy the premises. The premises shall be deemed ready for occupancy when the work to be done by the Landlord is substantially completed including common areas (interior and exterior) or would have been except for delay due to Tenant or the obligations of Landlord hereunder. The commencement date for rent purposes, whenever used herein, shall be the occupancy date. The commencement date for lease term purposes, whenever used herein, shall be the next succeeding .1 ' first of a month after the rent commencement date provided, "V however, this rent commencement date itself is not already a q. first of the month. 1. Rent: The total annual rental for the first year of the term shall be Fifteen Thousand Three Hundred Sixty Dollars ($15,360.00), which the Tenant covenants to pay in advance in equal monthly installments of one Thousand Two Hundred Eighty Dollars ($1,280.00), the first installment of which, pro rated if the commencement date is other that the first day of a calendar month, is due and payable on the commencement date, with subsequent installments due and payable on the first day of each calendar month thereafter until the total rent provided for is paid. In the event the rent commencement date is prior to the lease term date hereunder, Tenant shall pay, in addition to all other sums specified, $41.30 for each day including the first day of rent commencement, to the term commencement date, which payment shall be made on the commencement date. The Tenant covenants to pay concurrently with the signing hereof, the sum of One Thousand Two Hundred Eighty Dollars ($1,280.00), to be credited to the first month's rent under this Lease as above provided. The total annual rent in each subsequent year of this lease shall be as follows: $15,360.00 $ 1,280.00 $16,383.96 $ 1,365.33 $16,383.96 $ 1,365.33 $17,408.04 $ 1,450.67 2. Payment Late Chains Time of Faaenae: The Tenant covenants to pay the rent as herein provided without deduction whatsoever, and without- any obligation on the Landlord to make demand for it. To any installment of rent accruing hereunder and any other sum payable hereunder, if not paid when due, shall be added a late charge of five (SU percent of the amount overdue, for each month the payment is late. Time is of the essence in this lease. Payments shall be made to Landlord at the address set forth herein on the notice address. (a) Tenant covenants and agrees to pay Landlord within thirty (30) days of Landlord's notice to Tenant, as additional rent, Tenant's proportionate share, being equal to 1.16k of such amount due, of any real estate taxes assessed against the land and/or building(s) in which the premises are included. If this Lease shall be in effect for less than a full fiscal year, Tenant shall pay a prorated share of the taxes, based upon the number of months that this Lease is in effect. "Taxes" as used herein shall include, but not by way of limitation, all paving taxes, special paving taxes, school taxes, personal property taxes, sewer rents and any and all other benefits or assessments which may be levied on the premises or the land or building(s) in which the same are situate, but shall not include any income tax on the income or rent payable hereunder. Any reasonable expense incurred by Landlord in contesting any real estate tax shall be included as an item of taxes for the purpose of computing additional rent due the Landlord. In the event the "Real Property" is not separately assessed the parties hereto shall agree on an assessment figure which shall become the figure for the Base Year. (b) Landlord shall have the option, upon written notice to Tenant to collect, together with the monthly payment of rent hereunder, an amount equal to one-twelfth (1/12) of Tenant's proportionate share of the estimated real estate taxes due for the next succeeding fiscal year so that Landlord shall have an amount sufficient to pay such taxes when due. Appropriate adjustments shall be made between Landlord and Tenant upon the determination of the actual amount of such taxes. (c) The first "Lease Year" is defined as the first twelve (12) full calendar months of the term; subsequent Lease Years are subsequent twelve (12) month periods, 4. Care of Premises: (a) The Tenant agrees that he will take good care of the Leased Premises, fixtures, and appurtenances, including exterior doors and windows, window frames, hardware and the like, and gas and electric meters, plumbing, heating and air conditioning equipment (including that on the exterior of the Demised Premises), and keep same in good order and repair throughout the term of this Lease, and suffer or permit no waste or injury; Landlord shall assign to Tenant, for the benefit of the Tenant, to the extent they are assignable, any warranties on such equipment furnished Landlord by the Seller and/or provider thereof; that Tenant will conform to all laws, orders, and regulations of the Federal, State, County and City authorities, or any of their departments, and will not, through its own act or neglect, cause any situation to exist in or about the Leased Premises which would constitute a violation of any applicable Federal, State, County, or City Code Regulation or Ordinance governing use, occupancy, health, sanitation, or fire; that he will not do, or permit anything to be done, in the premises which will in any way increase the rate of fire insurance on the building, or conflict with the fire insurance policies on the building; that he will save harmless the Landlord from any liability arising from injury to person or property caused by any act or omission of Tenant, his agents, employees or guests; that he will repair at or before the end of the term, or sooner if so requested by the Landlord, all injury done by the installation or removal of furniture or other property, and will surrender the Leased Premises at the end of the term broom cleaned in as good condition as they were at the beginning of the term, ordinary wear and tear and casualties by fire and elements excepted. In the event of any increase in insurance as a result of the failure of the Tenant to comply with the provisions of this Paragraph, the Tenant will pay the amount of such increase as additional . rent within thirty (30) days after the Landlord's written demand. Nothing in this Paragraph shall be deemed to place upon the Tenant any obligation to make structural repairs, improvements or changes which may be required by any governmental body, provided the same are not required by the Tenant's use of the premises. The Landlord shall be under no liability to the Tenant for any discontinuance of heat, air conditioning, and hot water unless due to Landlord's negligence. The Landlord shall not be liable for any loss or damage to the Tenant's personal property, inventory or equipment caused by rain, snow, water or storms that may leak into or flow from any part of the premises through any defects in the roof or plumbing or from any other source unless due to Landlord's negligence. (b) Notwithstanding anything contained herein to the contrary, Landlord shall have no obligation whatsoever to make any repairs to the Demised Premises or to the building other than to make repairs resulting from damage caused by negligence, if any, of Landlord or its agents or employees or contractors except as otherwise provided in this Agreement. Landlord agrees to maintain and will keep in good repair the exterior of the building, the roof, the common areas and parking areas. (c) Tenant shall not place a load upon any floor of the Demised Premises that exceeds the lesser of (i) floor load per square foot which such floor was designed to carry or (ii) the maximum floor load per square foot allowed by law. Business machines and mechanical equipment shall be placed and maintained by Tenant, at Tenant's expense, in settings sufficient in Landlord's reasonable judgement to absorb and prevent vibration, noise and annoyance. (d) There shall be no allowance to Tenant for any diminution of rental value and no liability on the part of the Landlord by reason of inconvenience, annoyance or injury to business arising from the making by Landlord, Tenant or others of any repairs in or to the Building or the Demised Premises, or in or to the fixtures, appurtenances or equipment thereof. (e) Tenant covenants and agrees that it will, at Tenant's cost, procure and maintain service/maintenance contracts /policies (the "Contracts"), the issuers and contents of which shall be satisfactory to Landlord (whose judgement in that regard shall be reasonably exercised), in force throughout the. term of this Lease (including any renewal term) for the heating, ventilation and air conditioning systems serving the Leased Premises, in order that those systems and their components will be kept in good working order and repair. Copies of the Contracts will be furnished to Landlord as appropriate, throughout the term (including renewal term). If Tenant has failed to submit proof to Landlord that the Contracts required hereby are in force, at any time, Landlord may (but shall not be required to) procure the appropriate Contracts for Tenant, and the cost thereof shall be additional rent due by Tenant to Landlord and shall be due and payable by Tenant to Landlord within ten (10) days after Landlord sends Tenant documentation thereof. Whether or not such Contracts are in force, Tenant shall be responsible for the cost of all needed repairs to each and every component of each and every said system. (f) In the event Tenant shall not proceed promptly and diligently to make any repairs or perform any k obligation imposed upon it by this Section within ten (10) days after receiving written notice from Landlord to make such repairs or perform such obligation, then and in such event, Landlord, may, at its option, enter the premises and do and perform the things specified in said notice, without liability on the part of Landlord for any loss or damage resulting from any such action by Landlord and Tenant agrees to pay promptly upon demand any cost or expense (including Landlord's administrative expenses of fifteen percent (154) of direct costs) incurred by Landlord in taking such action. (g) Notwithstanding anything to the contrary herein, Landlord shall warrant its work within the premises and the systems serving the premises for a period of one (1) year from the occupancy date hereunder provided, however, such defect is not the result of Tenant's negligence or misconduct. Tenant shall, at its own cost and expense, pay all charges when due for water, gas, electricity, heat, sewer rentals or charges and any other utility charges incurred in the use of the Leased Premises. Landlord shall, at Landlord's cost and expense, install separate gas and electric meters for each Tenant. The Premises are to be used only for the purpose of a nutrition and weight loss center (no food service) and for no other purpose without Landlord's consent. Tenant will not use the Premises for any unlawful purpose; Tenant covenants not to conduct nor permit to be conducted on the Premises any business in violation of any law of the City and/or County in which the Premises are located or State or Federal law, ordinance or regulation. Tenant shall conduct business on the Demised Premises only in the name of Miracles and under no other name or trade name unless and until the use of some other name is approved in writing by Landlord. The Landlord or his agents shall have access to the Leased Premises at all reasonable hours in order to inspect same, to clean or to make necessary repairs or tenant improvements within the Leased Premises or the building. The Landlord shall have the right to show the Leased Premises to prospective tenants at any time during the final six (6) months of the lease term or any extension or renewal thereof, providing it does not unduly interfere with the Tenant's use of the Premises. This Lease shall be subject to and subordinate at all times only to the lien of any first mortgage and/or deed of trust and to all advances made or hereafter to be made thereunder. This subordination provision shall be self-operative and no further instrument of subordination shall be required. 10. Assignment o S,bl ino: Tenant shall not assign, mortgage or encumber this Lease, nor sublet the premises or any part thereof. This provision has been freely negotiated and agreed to by the parties hereto. Said consent to assignment or sublease may be withheld in the sole and absolute subjective discretion of the Landlord. In the event of the insolvency or bankruptcy of Tenant, this Lease shall, at the option of the Landlord, terminate forthwith, and this Lease shall not, by operation of law or otherwise, be considered a part of the Tenant's estate. 11. A] a a.ione: The Tenant covenants not to make or permit any alterations, additions or improvements to said premises without the prior written consent of the Landlord which consent shall not be unreasonably withheld, and all additions and improvements made by Tenant, except only moveable office furniture, and equipment, shall become the property of the Landlord at the termination of this Lease or the vacating of this premises. At the Landlord's request, all such alterations and improvements shall be restored to their original condition by Tenant at Tenant's expense at the termination of this Lease. 12. Tncre sed Fire Insurance pate, Tenant shall not do, suffer to be done or keep or suffer to be kept anything in, upon or about the Demised Premises which will contravene Landlord's policies insuring against lose or damage by fire or other hazards, including but not limited to public liability or which will prevent Landlord from procuring such policies in companies acceptable to Landlord. If anything be done, omitted to be done or suffered to be done by Tenant or kept or suffered by Tenant to be kept in, upon or about the Premises that shall cause the rate of fire or other insurance on the Premises or other property of Landlord in companies acceptable to Landlord to be increased beyond the minimum rate from time to time applicable to the Demised Premises for use for the purposes permitted under this Lease, Tenant will pay the amount of such increase promptly upon Landlord's demand as additional rent. 13. CommOn Facilities: The Common Facilities which may be furnished by Landlord in or near the shopping center for the general common use of Tenants, their officers, agents, employees and customers, including, without limitation, all parking areas, access roads, employee parking areas, driveways, loading docks and areas, delivery passages, sidewalks, malls, courts and ramps, landscaped and planted area, repainting walls, stairways, bus stops, lighting facilities, comfort stations, elevators and other areas and improvements, shall at all times be subject to the exclusive control and management of Landlord. Landlord reserves the right, in its sole discretion, to change, rearrange, alter, modify, reduce or supplement any or all of the common facilities so long as adequate facilities in common are made available to Tenant herein. 14. 8pgearance Outeide: Tenant shall maintain its show windows in a neat and clean condition, shall keep the sidewalks adjoining the Demised Premises clean and free from rubbish, and shall store all trash and garbage in the dumpsters provided by Tenant. Tenant shall not burn any trash of any kind in or about the building, nor shall Tenant permit rubbish, refuse or garbage to accumulate or fire hazard to exist about the Demised Premises. 15. Signs: The Tenant shall not display any sign, picture, advertisement, awning, merchandise, or notice on the outside or roof of the building of which the Demised Premises are a part, nor on the exterior of the Demised Premises unless approved by the Landlord in writing. Said sign shall be in conformity, as to size, style and location, with the signage scheme established by res onable the Landlord for the Building. Tenant shall, within akreas of the time, submit to Landlord for Landlord's approval, a sign. Tenant shall have the right to correct the style or size of the the sign or lettering thereon, the correctionsmshallfbemonlyhwith scheme mentioned above, but respect to the spelling of t mhaveothe right todrequiren Landlord, at Tenant a cost, shall Tenant to place ahsignagei schemetor asildin shown onn accordance with the the approved o, at any time during the term of this r b{ C attached hereto, Lease. 16. 1li=1Av The Tenant shall not display any merchandise, place vending machines or show cases or other obstructions on the outside of the building, or the Demised Premises, or in any lobby or passageway adjoining the same. 17. Laynut of Build=: The purpose of the site plan attached hereto as Schedule "A^ is to show the approximate location of the Demised Premises. Landlord reserves the automobile parking areasiandtotherocommon the various buildings, , areas shown on the site plan. Landlord hereby reserves the right at anytime to make alterations or additions to and to build additional stories on the buildings in which the Demised Premises are contained and to build additions adjoining the same or elsewhere in construct other ebuildings or Landlord improvements in thee areatheofright the to Building. Building from time to time and to make alterations thereof or additions thereto and to build additional stories on any such building or buildings and to build adjoining same. 18. Tenant, contemporaneously with the execution of this, Lease, has deposited with Landlord, the sum of one Thousand Two Hundred Eighty Dollars ($1,280.00), receipt acknowledged. Said deposit shall be held by Landlord, withounce liability for interest, as security for the faithfulionsperforma of this by Tenant of all of the terms, covenants, and condit Lease by said Tenant to be kept and performed during the term the hereof. If at any time during the term of this Lease any other rent herein reserved shall be overdue and unpaid, Y sum payable by Tenant to Landlord hereunder shall be overdue and unpaid, then Landlord may, at the option of Landlord, (botany Landlord shall not be required to), appropriate portion of said deposit to the payment of such verduetrent or be other sum. Should the entire deposit, any po ant of overdue appropriated and applied by Landlord for the paym rent or other sums due and payable to Landlord by Tenant hereunder, then Tenant shall, upon the written demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to restore said security to the original sum deposited, and stitutetalbreach of)thidays Lease. rShould of Tena five (5 ssuchndemandt-s shalltc ono Tenant comply with all of said terms, covenants, and conditions and promptly pay all of the rental herein provided for as it full at the' ermination of falls due, and all other sums payable bcheenant in t end of the term of this Lease, a upon this Lease, the said Security Deposit shall be returned to Tenant; no interest thereon shall accrue nor shall any interest be paid to Tenant. a 19. Damage to Premises; If the Premises are partially damaged by fire or other casualty, not the fault of the Tenant, Landlord shall make repairs as speedily as conveniently possible. If the damage is so extreme as to render the Premises wholly unfit for occupancy, the rent shall cease until the Premises are put into repair by the Landlord. In the event of total destruction of the building of which the Demised Premises form a part, or if in the judgement of the Landlord the damage to the Demised Premises cannot be repaired within one hundred twenty (120) days, and if the Landlord shall decide not to restore or repair the same, or shall decide to demolish the building, the Landlord may, within sixty (60) days after such fire or other casualty, by notification to the Tenant, terminate this Lease. In the event the Premises are only partially damaged and fit for occupancy, Tenant shall continue to pay rent, which rent shall be equitably adjusted. In no event shall Landlord be liable for any loss or damage sustained by Tenant by reason of fire or other accidental casualty. In the event more than fifty (50$) percent of the shopping center is destroyed and the Leased Premises are unfit for occupancy, the Tenant may terminate this Lease upon thirty (30) days prior written notice to the Landlord. 20. Waiver or Hrearh; No waiver of any breach of the covenants, provisions or conditions contained in this Lease shall be construed as a waiver of the covenant itself or any subsequent breach itself; and if any breach shall occur and afterwards be compromised, settled or adjusted, this Lease shall continue in full force and effect as if no breach had occurred. 21. Rules and Recrulatinns: Tenant shall comply with all rules and regulations. of the Windsor Park Shopping Center which rules and regulations are attached hereto and are hereby made a part of this Agreement. Any violation of said rules shall be a default under this Lease. Landlord shall have the right to make additions and amendments to the Rules and Regulations, which shall be as binding on Tenant as if set forth herein, provided such additions and amendments do not materially and adversely affect the Tenant's use of the Demised Premises, and provided that they are not inconsistent with the terms of this Lease. 22. InaurancQ: (a) The Tenant agrees to procure and maintain in force public liability insurance in a company or companies acceptable to Landlord for the leased premise!h we policies shall be written to protect the Tenant and e Landlord in the amount of One Million Dollars ($1,000,000) combined single limit per occurrence with at least an aggregate of Two Million Dollars ($2,000,000) excess coverage and with Fire Legal Liability coverage in the amount of Five Hundred Thousand Dollars ($500,000). Tenant also agrees to furnish to Landlord certificates of the issuance and maintenance of such policies of insurance, all of which shall be paid for by the Tenant. (b) Landlord and Tenant shall cause the insurance policy carried by each such party insuring the Leased Premises and/or its fixtures and contents against loss by fire or other casualties to be written in a manner so as to provide that the insurance company waives all right of recovery by way of subrogation against Landlord or Tenant in connection with any loss or damage covered by any such policies. Neither party shall be liable to the other for loss or damage caused by fire or any other risk included in the coverage of the standard fire and extended coverage insurance in Pennsylvania (provided that such insurance was obtainable with waiver of subrogation in advance of loss at the time of such loss or damage), notwithstanding that' such loss or damage is caused by or occurs through or as result of any acts or omissions (negligent or otherwise of a party hereto, or his or her agents, servants or employees or any other cause which would result in liability under this Lease or by operation of law. If the release of either Landlord or Tenant, as set forth in the second sentence of this Paragraph, shall contravene any law with respect to exculpatory agreements, the liability of the party in question shall be deemed secondary to the liability of the other party's insurer. 23. Indemnity; Tenant will indemnify Landlord and save it harmless from and against any and all claims, actions, damages, liabilities and expenses (including reasonable attorneys fees) in connection with loss of life, personal injury and/or damage to property (including environmental and hazardous waste damages) arising from or out of any occurrence in, upon or at the Leased Premises, or the occupancy or use by Tenant of the Leased Premises or any part hereof, or occasioned wholly in part, by act or omission of Tenant, its agents, contractors, or employees, servants, lessees or invitees. In case Landlord shall, without fault on its part, be made a party to any litigation commenced by or against Tenant, then Tenant shall protect and hold Landlord harmless and shall pay all costs, expenses and reasonable attorneys' fees incurred by Landlord in connection with such litigation. Tenant shall indemnify Landlord for any damage to any property of Landlord caused by or arising out of or in connection with any act or omission of Tenant, its employees, servants, agents, contractors, or invitees, or Tenant's occupancy or use of the premises or common areas, or anything, matter or condition of, on or pertaining to the premises, or any breach by Tenant of any term, covenant or condition of this Lease to be performed or observed by Tenant. Landlord will indemnify Tenant and save it harmless from and against any and all claims, actions, damages, liabilities and expenses (including reasonable attorneys fees) in connection with loss of life, personal injury and/or damage to property (including environmental and hazardous waste damages) arising from or out of any occurrence in, upon or at the Leased Premises, or the occupancy or use by Landlord of the Leased Premises or any part hereof, or occasioned wholly in part, by act or omission of Landlord, its agents, contractors, or employees, servants, lessees or invitees. In case Tenant shall, without fault on its part, be made a party to any litigation commenced by or against Landlord, then Landlord shall protect and hold Tenant harmless and shall pay all costs, expenses and reasonable attorneys' fees incurred by Tenant in connection with such litigation. Landlord shall indemnify Tenant for any damage to any property of Tenant caused by or arising out of or in connection with any act or omission of Landlord, its employees, servants, agents, contractors, or invitees, or Landlord's occupancy or use of the premises or common areas, or anything, matter or condition of, on or pertaining to the premises, or any breach by Landlord of any term, covenant or condition of this Lease to be performed or observed by Landlord. 24. Condemnation; In the event the whole or any part of the Leased Premises shall be taken under the power of eminent domain, or sold under threat thereof, or taken in any manner for public use, the Landlord, at its option, may terminate this Lease, which Lease shall then terminate on the effective date of the condemnation or sale. The compensation awarded or paid for such taking, both as to Landlord's reversionary interest and Tenant's interest under this Lease, shall belong to and be the sole I'' property of the Landlord. Tenant shall have no claim against the Landlord or be entitled to any award or damages other than an abatement of the rent beyond the period of termination date and compensation paid for moving expenses and/or cost of removal of stock and/or trade fixtures, if allowable by the condemnor. 25. Addi +ona? R n -nd A ern y s Fr , Whenever, under the terms of this Lease, any sum of money is required to be paid by Tenant in addition to the rental herein reserved, whether or not such sum is herein designated as "additional rental", or provision is made for the collection of such sum as "additional rental", said sum shall, nevertheless, at Landlord's option, if not paid when due, be deemed additional rent, and shall be collectable as such. In the event of employment of an attorney by the Landlord because of the violation of any term or provision of this Lease, the Tenant shall pay reasonable attorney's fees. 26. Covenant to h d This Lease and the tenancy hereby created shall cease and terminate at the end of the original term hereof, without the necessity of any notice of termination from either Landlord or Tenant, and Tenant hereby waives notice to remove and agrees that Landlord shall be entitled to the benefit of law respecting summary recovery of possession of the premises from a Tenant holding over to the same extent as if statutory notice was given, provided, however, that this Lease and the tenancy hereby created shall not so cease and terminate at the end of the original term if the Tenant shall have been granted an option or options to renew and shall have exercised said option or options in accordance with the terms thereof and shall be entitled to remain in possession under said option and/or options. In said event, this Lease and the tenancy hereby created shall cease and terminate at the end of the last option period exercised under the terms of this Lease without the necessity of any notice of termination from either Landlord or Tenant, and the Tenant hereby waives notice to remove and agrees that Landlord shall be ' entitled to the benefit of law respecting summary recovery of possession of premises from the Tenant holding over to the same extent as if statutory notice were given. If Tenant shall occupy the premises after such expiration or termination, it is understood that Tenant shall hold the premises as a tenant from month to month, subject to all the other terms and conditions of this Lease, at an amount equal to double the highest monthly rental installment reserved in this Lease. 27. Quiet Rnjoyment: Landlord covenants that, upon the payment of the rent herein provided, and the performance by the Tenant of all covenants herein, Tenant shall have and hold the premises, free from any interference from the Landlord, except as otherwise provided for herein. 28. T nan D fa+1 (a) In case of the non-payment of rent within five (5) days of the times provided for herein, or in case the said. Leased Premises shall appear to be deserted, or vacated, the Landlord shall have the right to enter the same and distrain for any amount of money that may be due under this Lease, either by force or otherwise, without being liable to any prosecution therefor, and to apply any proceeds to the payment of the rent due or to be due, holding the Tenant liable for any deficiency. (b) It is agreed that upon any default on the part of the Tenant of any provision or covenant of this Lease other than the non-payment of rent, the Landlord shall have the right, after thirty (30) days notice to the Tenant, to perform therefore on behalf of the Tenant at the risk and expense of the Tenant and to render a bill for the cost thereof to the Tenant, which shall be payable as rent. Upon failure of the Tenant to pay such bill within thirty (30) days after sending such bill to the Tenant at the Leased Premises, the Landlord shall have the same rights against the Tenant (and with reference to the leased premises) as it has in the event of non-payment of rent. (c) The Landlord shall have the right after the (i) non-payment of rent within the applicable time period provided for herein or (ii) after applicable notice, if required herein, of a violation by the Tenant of any of the covenants or provisions on the part of the Tenant contained in this Lease, to re-enter and take possession of the Leased Premises without formal notice if the violation has not been corrected within said applicable time period (provided that if the Tenant has commenced to repair the Premises within said applicable time period as to non-monetary defaults and proceeds, with due diligence to complete same, it shall not constitute a default), and it is further agreed that notwithstanding such re- entry, the Tenant shall remain liable for all rent and other damages and losses as of the date of re-entry, and shall further be liable, at the option of the Landlord, for the amount of rent reserved under the Lease for the balance of the term, less any amount of rent received by the Landlord during such period from others to whom the Premises may be rented on such terms and conditions and at such rentals as Landlord, in its sole discretion, shall deem proper, all of which shall be at the risk and expense of the Tenant. In addition, Landlord, at its option, shall have the right to repossess the Leased Premises and terminate this Lease. (d) In the event Landlord terminates this Lease, the Landlord may, without further notice, re-enter the Leased Premises and dispossess Tenant, the legal representatives of Tenant, or other occupant of the Leased Premises, and remove their effects and hold the Premises as if this Lease has not been made. The Landlord shall also be entitled to the benefit of all provisions of law for the recovery of land and tenements held over by Tenant in Cumberland County, Pennsylvania, or the Township in which the Premises are located, including the benefit of any public, general or local laws relating to the speedy recovery of possession of lands and tenements held over by lessees in said County in which the Premises are located, or that may hereafter be enacted. (e) It is expressly agreed and understood that the exercise of any one or more of said rights shall not be construed as a waiver of any other rights, it being understood that all of said rights shall be cumulative and may be exercised simultaneously. (f) The said Tenant hereby confesses judgment for the rent reserved under this agreement of lease, together with an attorney fee of five percent (5$) for collection, and execution may be issued thereon from time to time for any rent due and owing under this lease, and judgment in ejectment as herein provided may be entered concurrently therewith. (g) The Tenant does hereby, upon breach of any of the conditions or covenants of this lease during the original term or any renewal, and also when and as soon as the term hereby created or any extension or renewal thereof shall have expired agrees that an amicable action of ejectment may be entered by the prothonotary of the Court of Common Pleas of the County of Cumberland as if a complaint in ejectment has been filed by the Landlord as Plaintiff against the Tenant as defendant for all and singular the property herein described and as if said complaint in ejectment had been duly served personally upon the Tenant by the Sheriff of said County within said County and had been duly 30 I returned by said Sheriff served personally upon said Tenant, and the said Tenant hereby authorizes and empowers any attorney of any court of record to appear for the Tenant in said amicable action of ejectment and confess judgment therein in favor of the Landlord and against the Tenant for said premises and said Tenant further authorizes the immediate issuance of a writ of possession upon a praecipe therefor by the plaintiff f-a attorney and the Tenant hereby waives any and all right of stay of execution and releases to the Landlord all errors and defects whatsoever in entering said action or judgment or in causing said writ to issue or in any proceeding thereon or concerning the same and agrees that no writ or error, objection or exception shall be made or taken thereto, and if after execution and return of the writ the defendant shall re-enter into possession, the prothonotary, upon praecipe and affidavit setting forth the facts, filed within three (3) years after the return of the writ upon which execution was completed shall issue a new writ of possession. 29. Notice: All notices from Tenant to Landlord shall be sent by Registered or Certified Mail, Return Receipt Requested, and addressed to Landlord at P.O. Box 548, 9183 Reisterstown Road, Owings Mills, Maryland 21117. After occupancy of the demised premises, all notices from Landlord to Tenant shall be sent by Registered or Certified Mail, Return Receipt Requested, Hand Delivery, or nationally recognized overnight Delivery Service and addressed to Tenant at the premises. Either party may from time to time, designate, in writing, by Registered or Certified Mail, Return Receipt Requested, a substitute address, and thereafter all notices shall be sent to such substitute address. 30. Other Taxes: Tenant shall assume and pay to Landlord, as additional rent, prior to the imposition of any fine, penalty, interest or costs for the non-payment thereof, all excise, sales, gross receipts, or other tax (other than a net income or excess profits tax) which may be (i) assessed or imposed on or be measured by such rent or other charge which may be treated as rent, or (ii) which may be imposed on the letting or other transaction for which such tax is payable and which Landlord may be required to pay or collect under any law now in effect or hereafter enacted by any governmental authority. In the event any tax is imposed pursuant to this Paragraph in place of the real property tax, then Tenant shall receive credit for an amount equal to its proportionate share of the Base Year tax which would have been paid pursuant to Paragraph 3 hereof. 31. R2or .ern a ions: Landlord or Landlord's agents have made no representations or promises with respect to the said building or Demised Premises except as herein expressly set forth. 32. Trial by Jury: For any action concerning this Lease and payment of rent in any form, Landlord and Tenant do hereby waive trial by, jury in any action, proceeding or counter claim brought by either of the parties hereto against the other 33. Parking: During the term of this Lease, customers of Tenant will be entitled to the non-exclusive use, free of charge but in common with others, of the driveways, footways, and parking areas provided that such use shall be subject to such rules and regulations as Landlord may, from time to time, prescribe governing the same; and provided further that Landlord shall at 11 F all times have full and exclusive control, management and direction of said driveways, footways and parking areas. Landlord shall further have the right to police the same; to restrict parking by Tenant, their agents and employees; to designate employee parking areas; to close temporarily all or any portion of the parking areas or facilities as may be required fox proper maintenance and/or repairs; to discourage non-customer parking; and to do and perform such other acts in and to such areas in the use of its business judgement, the Landlord shall determine to be advisable in order to improve or make more convenient use thereof by Tenant, their officers, agents, employees and customers. The Landlord may, from time to time, change the location, layout and arrangement of the parking areas, driveways and footways and reduce the same by erecting therein store buildings and other structure or improvements of any kind. 34. Gender: Reference to masculine, feminine or neuter shall include proper gender as the case may be. If more than one Tenant is named herein, the obligations of the person so named shall be joint and several. 35. Construction of Premises: To the extent possible, Landlord shall make available to Tenant the benefits of all warranties and guarantees obtained from contractors, subcontractors, suppliers and manufacturers in connection with the original construction and subsequent alteration and repair of the premises and appurtenances. 36. Access by Tenant; Prior to the commencement date, Landlord shall allow the Tenant and their agents or employees to enter upon the premises for the purpose of erecting fixtures and improvements not provided by the Landlord. The Tenant covenants that they and their agents or employees shall enter on the premises and do their work at such times and in a manner which will not interfere with the work being performed by the Landlord. The Tenant further covenants that all work done by them or on their behalf shall be done in a good and workmanlike manner. The entry upon the premises by the Tenant or their agents or employees pursuant to this Paragraph shall not be deemed to be occupancy of the premises for the purpose of Paragraph 1 hereof. 37. Estoppel Certificates: Tenant agrees that at any time, and from time to time, upon not less than five (5) days prior notice by Landlord, it will execute, acknowledge, and deliver to Landlord a statement in writing certifying that this Lease is unmodified and 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) and the dates to which the rent and other charges have been paid in advance, if any, and stating whether or not, to the best knowledge of the signer of such certificate, Landlord is in default in the performance of any covenant, agreement or condition contained in this Lease and, if so, specifying each such default of which the signer may have knowledge, it being intended that any such statement delivered hereunder may be relied upon by any third party not a party to this Lease. 38, iandlo dis Liability: It is understood that Landlord is a Maryland General Partnership, and it is agreed, that in the event of the entry of any judgment against the partners of said partnership, as it is now or may hereafter be constituted, arising out of or by virtue of any obligation required of Landlord pursuant to this Lease, no 12 assets of any partner shall be liable to levy and/or execution and/or sale for satisfaction of said judgement except for the partner's interest in the partnership property of said partnership. 39. Landlord's Insurance Premiums: Tenant agrees to pay, as additional rent, within thirty (30) days after being billed therefor by Landlord, 1.16% of any and all insurance premiums charged Landlord for Landlord's fire, extended coverage and liability insurances, including umbrella coverage with respect to the Building. Such additional rent shall be pro-rated for the last lease year. 40. Possession: The parties hereto anticipate that the Leased Premises will be ready for occupancy on or about the first day of August, 1997. In the evert the premises is not ready for occupancy on the date stipulated, the Lease shall nevertheless continue in full force and effect and Tenant shall have no right to rescind, cancel or terminate the same, nor shall the Landlord be liable for damages, if any, sustained by Tenants inability to obtain possession on such date, except that the commencement date shall be moved forward to the date on which possession is made available. 41. Landlords Work Landlord agrees, at its cost and expense, t,? do the following work within the premises: Build the premises in accordance with the plans and specifications as set forth in Exhibit B attached hereto. 42. Option to Renew: Landlord covenants and agrees that if Tenant shall not be in default in the performance of any of the covenants, conditions and agreements of this Lease and no condition exists which will result in a default with the mere passage of time, Tenant shall have the right and privilege, at its election, to renew this Lease for a further term of five (5) years by signifying its intention to renew, in writing, to the Landlord no later than six (6) months preceding the termination date of the original term of this Lease, time being of the essence. Thin renewal term shall be upon the same terms, covenants and conditions as are set forth herein for the original term, saving that the annual rent (as set forth in Paragraph 1 of this Lease) for the renewal term shall be as follows: Year 5 Annual Rent $17,408.04 M $ onthly Rent 1,450.67 7 $18,432.00 $ 1,536.00 8 $18,432.00 $ 1,536.00 9 $19,455.96 $ 1,621.33 10 $19,455.96 $ 1,621.33 43. Com mon Area Maintenance Landlord or its affiliates, subsidiaries, agents or employees shall be responsible for the maintenance of landscaping around the building(s) (lawncutting, snow removal, trash removal, etc.) in which the premises are located, as well as all the cost and expense of repainting and general exterior maintenance and other maintenance of the common area, parking area, driveways and alleys. Landlord or its affiliates, subsidiaries, agents or employees shall also be responsible for the cost and expense of 13 'n( I/ maintaining and illuminating the common areas around the buildings(s). Tenant shall reimburse Landlord for Tenant's proportionate share (1.161) of such costs within thirty (30)) days after Landlord's request therefor. The costs shall be calculated on a calendar year base with equitable adjustments if the first and the last year of the lease term are not a full calendar year. At Landlord's option, Tenant shall pay Landlord one twelfth (1/12) of Landlord's reasonable estimate of much costs on an annual basis, which payment shall be included with Tenant's monthly payment of base rental. Appropriate adjustments shall be made between Landlord and Tenant upon the determination of the actual amount of such costs by Landlord. Landlord shall provide Tenant with written notice (the "Adjustment Notice") of the actual adjustment to be made by and between Landlord and Tenant. Upon ten (10) days advance written notice received by Landlord no later than thirty (30) days after the Adjustment Notice is sent, Tenant may inspect Landlord's books and records pertaining to such costs for the immediately preceding lease year at a location and date reasonably acceptable to Landlord but no later than ninety (90) days after the Adjustment Notice is sent. Tenant shall have no additional right to inspect Landlord's books and records unless specifically stated otherwise in this Lease. 44. M's. Tian =: This Lease and the covenants, terms and conditions contained herein shall inure to the benefit of and be binding on Landlord, provided that if Landlord sells or otherwise transfers title to building or Real Property, the Landlord shall be relieved of all covenants and obligations hereunder upon completion of such sale or transfer, and it shall be considered that the transferee has assumed and agreed to carry out all of the obligations of the Landlord hereunder. This Lease and the covenants, terms and conditions contained herein shall be binding on and inure to the benefit of the Tenant, its heirs, distributees, executors, administrators, successors, and, except as otherwise provided in this Lease, its assigns. IN WITNESS WHEREOF, the parties hereto, by the properly authorized persona and with their respective seals attached, have duly executed this Lease the day and year first above written. WITNESS: WINDSO P K SHOPPPING CENT P TN SHIP BY: (SEAL) h r A er WITNESS: RICK P. HAWKINS WITNESS: C N TAYLOR leases\miracles 6/16/97 14 1. The sidewalks, halls passages, elevators and stairways shall not be obstructed by any of the tenants, or used by them for any other purpose than for ingress and egress to and from their respective leased premises. 2. Tenants, their clerks or servants, shall not make or commit any improper noises or disturbances of any kind in the building, or mark or defile the waterclosets, toilet rooms, walls, windows, elevators or doors of the building, or interfere in any way with other tenants or those having business with them. 3. No carpet, rug or other article shall be hung or shaken out any window or placed in corridors as a door mat, and nothing shall be thrown or allowed to drop by the tenants, their clerks or employees, out of the windows or doors, or down passages or shafts of the building, and no tenants shall sweep or throw, or permit to be thrown from the leased premises, or any dirt or other substance into any of the corridors or halls, elevators, shafts or stairways of said building. 4. The toiletrooms, waterclosets, and other water apparatus shall not be used for any purpose other than those for which they were constructed, and no sweeping, rubbish, rage, ashes, chemicals, or the refuse from electric batteries, or other unsuitable substances, shall be thrown therein. Any damage resulting from such misuse or abuse shall be borne by tenant by whom or by whose employees or visitors it shall be caused. 5. Nothing shall be placed on the outside of the building, or on the windows, windowsills, or projections. 6. No sign, advertisement, or notice shall be inscribed, painted or affixed on any part of the outside or inside of said building unless of such color, size, and style, and in such places upon or in said building as shall be first designated by Landlord. signs on doors and windows, where permitted or required, will be affixed for the tenants by a contractor chosen by Landlord, the cost of the sign and of the affixing to be paid by tenant. 7. After permission to install telephones, call boxes, telegraph wires, or other electrical wires has been granted, Landlord will direct where and how same are to be placed. No wires shall be run in any part of the building outside of the leased premises excepting by or under the direction of Landlord. The attaching of wires to the outside of the building is absolutely prohibited. No boring or cutting of floors or partitions for wires is permitted except with prior written consent of Landlord. 8. Tenants may use their own safes, but Landlord shall the right to prescribe the weight and proper position of safes, and no safe shall be hoisted or placed in any part of the building excepting under the direction of Landlord's agents. All damage to the building caused by installing, maintaining or removing safe, furniture, equipment or other property shall be repaired at expense of tenant. . 9. Each tenant must, upon termination of his Lease, surrender all keys delivered to said tenant. lo. No tenant shall do or permit anything to be done in said premises or bring or keep anything therein which will in any way increase the rate of fire insurance on said building or on property kept therein, or obstruct or interfere with the rights of other tenants, or in any way injure or annoy them, or conflict with the laws relating to fires, or with the regulation of the Fire Department or with any insurance policy upon said 15 building or any part thereof, or conflict with any of the rules and ordinances of the Department of Health. Tenant shall not conduct or permit any auction on the premises. 11. Any and all damage to floors, walls or ceilings or to personal property due to tenant or tenant's employees' failure to shut off running water in any piece of equipment shall be paid by tenant. 12. Tenant shall not place a load upon any floor of the demised premises exceeding the floor load per square foot area which such floor was designed to carry and which is allowed by law. Business machines and mechanical equipment shall be placed and maintained by tenant at tenant's expense in settings sufficient, in Landlord's reasonable judgment, to absorb and prevent vibration, noise and annoyance. 13. Landlord reserves the right to exclude or expel from the shopping center any persons who, in the judgment of Landlord, are intoxicated or under the influence of liquor or drugs, if their behavior is deemed to be disturbing to other tenants of the building, or who shall do anything in violation of the Rules and Regulations of the shopping center. 14. Landlord shall have the right to prohibit any advertising by any tenant which, in Landlord's opinion, tends to impair the reputation of the shopping center or its desirability as a center for quality stores, and upon written notice from Landlord, such tenant shall refrain from or discontinue such advertising. 15. Landlord assumes no responsibility and shall not be liable for any damage resulting from the admission of any authorized or unauthorized person to the building. 16. No tenant will install blinds, shades, awnings, or other form of inside or outside window covering, or window ventilators or similar devices, without the prior written consent of Landlord, which consent shall not be unreasonably withheld. as/jc leases\miracies 6/16/97 16 h Simpson Ferry Road SWM Pond R /A 'haute ughc tA ?P ? P r .,,,,.,, - ;.I - I ,P n,o[un Exhibit B THIS ASSIGNMENT is made this ,29/4 day of 1998, and assigns all rights, title, and interest in a lease dated 25 June 1997 in which th Windsor Park Shopping Centers Partnership was the lessor and Rick P. Hawkins and Cindi Taylor were the lessees. The parties to this assignment are: CINDI TAYLOR, an adult individual who resides in Mechanicsburg, Pennsylvania, hereinafter referred to as "Assignor"; and JOHN WHITCOMB and KATHY WHITCOMB, his wife, adult individuals who reside in Mechanicsburg, Pennsylvania, hereinafter collectively referred to as "Assignees". WITNESSETH: WHEREAS, the Windor Park Shopping Centers Partnership, as Lessor, and Rick P. Hawkins and Cindi Taylor, as Lessees, were parties to a lease dated 25 June 1997 whereby Lessees undertook to make certain rental payments to Lessor in exchange for the use and occupancy of premises described as Suite 106 at 5202 Simpson Ferry Road in Mechanicsburg, Cumberland County, Pennsylvania, and Rick P. Hawkins and Cindi Taylor have dissolved their business relationship and the parties hereto wish to assign all of Cindi Taylor's rights and obligations under that lease to Assignees, and the parties wish to have that agreement reduced to writing. NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter set forth, and intending to be legally bound and to.!egally bind their heirs, successors and assigns hereby, the parties do hereby covenant, promise, and agree as follows: 1. Assignor does hereby assign, transfer, grant, bargain, convey, and set-over unto Assignees, all of her right, title, and interest in the said lease dated 25 June 1997 and in the premises to which that lease pertains, being Suite 106 at 5202 Simpson Ferry Road in Mechanicsburg, Cumberland County, Pennsylvania. This assignment is made without reservation or limitation and includes any and all rights or benefits belonging to or coming to the Assignor by virtue of said lease and said premises. 2. In consideration of the assignment hereby, Assignees agree to assume and be responsible for all of Taylor's obligations under the said lease, jointly and severally with the said Rick P. Hawkins, and to fully perform all such obligations so as to prevent any loss or cost to Assignor. 3. This assignment shall be effective upon the date of its execution. This assignment shall be interpreted, applied, and enforced in accordance with the laws of and by the courts of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. W ness _ . v i ess Witness Witness CONSENT AND RELEASE WINDSOR PARK SHOPPING CENTERS PARTNERSHIP, by its duly-authorized representative and general partner who has signed below, does hereby consent to the above assianment of the lease for premises known as Suite 106 at 5202 Simpson Ferry Road in Mechanicsburg, Cumberland County, Pennsylvania, and does further agree to release the said Cindi Taylor from any and all further obligation under said lease and to look only to Rick P. Hawkins, John Whitcomb, and Kathy Whitcomb for performance of the obligations under said lease. WINDSOR PARK SHOPPING CENTERS PARTNERSHI ?( ey- i i J 4 J J?V t.7 t" 1Q ..N C?w\` V CiV ga. V -V y ^Vl VV V Y ?X '.l 1 J V _ Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 57782 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 WINDSOR PARK SHOPPING CENTERS, LLP, Plaintiff V. JOHN WHITCOMB and KATHY WHITCOMB, Individually and Udlbla MIRACLE WEIGHT LOSS CENTER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Defendants No. 9?' y9S/ Cc?.D CIVIL ACTION - LAW IN EJECTMENT NOTICE UNDER RULE 295& 1 OF JUDGMENT AND EXECUTION THEREON TO: JOHN and KATHY WHITCOMB MIRACLE WEIGHT LOSS CENTER 5202 Simpson Ferry Road, Suite 106 Mechanicsburg, Pennsylvania 17055 A judgment in the amount of $61,357.91 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOUR OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 (717) 240-6200 :125521 JOHNSON, DUFFIE, STEWART & WEIDNER BY: at-, David J. Lanza 0 Iv c. IMi: O j sg m? a z 0% U 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 WINDSOR PARK SHOPPING CENTERS, LLP, Plaintiff V. JOHN WHITCOMB and KATHY WHITCOMB, individually and Ud/b/a MIRACLE WEIGHT LOSS CENTER, Defendants TO: JOHN and KATHY WHITCOMB MIRACLE WEIGHT LOSS CENTER 5202 Simpson Ferry Road, Suite 106 Mechanicsburg, Pennsylvania 17055 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. Q? y4S'/ CIVIL ACTION - LAW ! Y re hereby notified that on August 1999, judgment by confession was entered against you in the sum of $ / ?J ---in the above-captioned case. DATE: Elk ?i YOU SHOULD TAKE THIS PAPER TO YOUR LA1iJ70 CE. IF OU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 (717) 240-6200 1 hereby certify that the following is the address of the Defendants stated in the certificate of residence: John and Kathy Whitcomb, t/d/b/a Miracle Weight Loss Center 5202 Simpson Ferry Road, Suite 106 Mechanicsburg, PA 17055 :125521 Attorney for Plaintiff -SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-04951 P 'COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WINDSOR PARK SHOPPING CENTERS VS. WHITCOMB JOHN ET AL R. Thomas Kline Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: WHITCOMB JOHN T/D/B/A MIRACLE WEIGHT LOSS CENTER but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania. to serve the within CONFESSION OF JUDGMENT On September 7th, 1999 , this office was in receipt of the attached return from YORK County, Pennsylvania. Sheriff's Costs: So answer Out of C / Docketing 18.00 Out of County 9.00 Surcharge 8.00 omas in e i DEPUTIZE YORK CO 49.08 $54.8 JOHNSON DUFFIE, STEWART Sworn and subscribed to before me this 7 r" day of 1.9917 A. D. ? Q c ro ono bi -SHER'IFF'S RETURN - OUT OF COUNTY CASE NO: 1999-04951 P 'COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WINDSOR PARK SHOPPING CENTERS VS. WHITCOMB JOHN ET AL R. Thomas Kline Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: WHITCOMB FATHY T/D/B/A MIRACLE WEIGHT LOSS CENTER but was unable to locate Her in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania. to serve the within CONFESSION OF JUDGMENT On September 7th 1999 , this office was in receipt of the attached return from YORK County, Pennsylvania. Sheriff's Costs: So answer Docketing 6.00 Out of County .00 f j' Surcharge 8.00 RTI om s ine, 5 eri $14.UU OJOHNSONg99UFFIE, STEWART Sworn and subscribed to before me this 99-- day of 19! _ A. D. ?Ll'rlt?rio ar • -? • s a • • a e a • a a • • • e • (2 of 2) COUNTY OF YORK 4. JTYPE OF WRIT OR COMPLAINT Not. & Comp./Ejectment hi tCOmb, et. al. Confession of Judgement S. NAME OF INDIVIDUAL, COMPANY. CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD. Kathy Whitcomb, ind., & t/d/b/a Miracle Weight Loss Center 6. ADDRESS (STREET OR RFD WITH BOX NUMBER, APT -1" Y, 90R0, I WK. STATE AND 21P CODE 20 Barbara Lane, York Haven, PA 17370-09095 n,c acmn,e: UPERSONAL O PERSON IN C{IARCE )()DEPOT a1STCLASS MAIL OSTED OOTHEq NOW _ or 19 _ I, SHERIFF OFXQRK COU o hereby de a heriff of COUNTY to exec eA?t1k(re cording to law. This deputatlcn being made at the request and risk of the plaintiff. _ %.umoeE6ana o n_ C G7 17 rrI N c) r '"I r-n 70 O T 3: 1 O G NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - N OT Any deputy sheriff levying upon or attaching any property and 'thin s7i tt va same without a watchman, In custody of whomever is found in possession, after notifying person of levy or attachment, without liabili on the an of such plaintiff heroin for any low, destruction, or removal of an b pan {lepury or Ihe'p0edfflo any y property before ahetlMS sale thereof. `T r-1 9. TYPE NAME AND ADDRESS 01 ATTORNEY/ORIGINATOR and SIGNATURE 10. TELEPHONE N15 B9fb 11, DA ILED David J. Lanza, Esq. W vm ft kpt- a4_ _? P n ._ -- --- - 71Z7-761-4540 8/16/99 D NOTICE OF SERVICE COPY TO NAME AND ADDRESS 13EL W. (This area must 12 SEN be completed I/ notice Is to be melted). Cumberland County Sheriff SPACE BELOW FOR USE OF THE SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 131 ckn SIGNATURE OFAUTHO 23. Advance Costs 24. Servloe Costs 25. WF 28. Mileage 27. Postage 28. Sub Total 29. Pound 30. Notary Fen 31. Surcharge 32. Total COSL4 33. Cost Due or 34. Foreign Count' Costs 35. Advance Costs 38. Service Costs 37. Notary Can. 38. Mileege/Poslage/N.F. 39. Total Costs Q. Cost Due or Refund 41 3rd AFFIRME SO ANSWER. 44 S . D end subscribed to before me this . gnaturo of 42. day of TANIALJLALL j 45. Signature of York 47. e 48 ale P County Sheriff ?y . 43. t r Y rk WILLIAM M. HOSE SHERIFF MY COMMISSION EXPIRES - _ 46. ignatureo Foreign Coun ShenH 49. Dale 50.1 ACKNOWLEOOE RECEIPT OF THE SHERIFFS RETURN SI GNATURE OFFICE OF THE SHERIFF S(717) 771-9601 28 EAST MARKET ST, YORK, PA 17401 SHERIFF SERVICE INSTRUCTIONS PROCESS RECEIPT, and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINES 1 TO 12 AINTIFF/S? DO NOT DETACH ANY COPIES. 2. COURT NUMBER 99-4951 Civil Windsor Park Shopping Centers LLP yr ^V mvniceu JT IJINIJ A- "-UNITY AND TITLE 1. WHITE - lasing Authodry 2. PINK -Attorney 3. CANARY - S11BdfrS Office 4. BLUE • Sheriff's Office a owledge receipt Of the writ RILED CLERK 14. Dale Received 15. Expiratic,0555QOiK or complaint as indicated above. B. Feeser 8/25/99 9/15/99 18 HOW SERVED. PERSONAL¢t RESIDENCE IT POSTED( I POE( I SHERIFF'S OFF ( I OTHER I I RFE lacunnvc n h ^ n A M ^ n r? n ?. Q n n n f? A (1 of 2) COUNTY OF YORK OFFICE OF THE SHERIFF SERVICECALL (717) 771-9601 28 EAST MARKET ST. YORK, PA 17401 SHERIFF SERVICE INSTRUCTIONS PROCESS RECEIPT, and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINES 1 TO 12 DO NOT DETACH ANY COPIES. John Whitcomb, et. al. Not. & Comp./Ejectment r f ?pF T l SERVE 5 NAME OF INDIVIDUAL, COMPANY. CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED. ATTACHED, OR LLD John Whitcomb. e ind.. & t/h/a M; ariP Toss Centr 8. ADDRESS (STREET OR RFD WITH 80x NUMBER, APT/dNO., ITV, BORO, TWP., WA VV N'151 t O AT 20 Barbara Lane, York Haven, PA 17370-9095 7. INDICATE SERVICE: O PERSONAL D PERSON IN CHARGE Xs DEPUTIZE Cun tMeru3talnd O 1ST CLASS MAIL D POSTED O OTHER NOW 19 _ 1, SHERIFF OF COUNTY, PA he y deputize the fl of York _ COUNTY to execute IN I r her rill g to law. This deputation being made at the request and risk of the plaintiff. T ADVANCE FEE PD BY CUMBERLAND COUNTY SHERIFF 1i8nd T ?+T c o m m N cn 70 m -. -c -T1 = m NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any property under w'thin writ n4i Ie80e same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment. without liability on the pan of such ?ty or the sheriff to any plaintiff herein for any loss, destruction. or removal of any property before sheriff's sale thereof. "rl 9. TYPE NAME AND ADDRESS of ATTORNEY/ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBEZ5 If. DATE FILED David J. Lanza, Esq. .. ,. , ,,.,. V 'Advance Costa $ 75.00 24. Service Costs 24.00 25. WF 26. Mileage 21.08 27. Postage 26. Sub Total 45.08 29. Pound 30. Notary Fee 4.00 31. Surcharge 32. Total L'osts 49.08 33. Cost Due or efu $25.92 34. Foreign County Costs 35. Advance Costs 36. Service Costs 37. Notary Can. 38. Mileage/Postage/N.F 39. Total Costs 40. Cast Due or Refund SO ANSWER. 41. AFFIRMED and subscribed to before me this 3rd 44. Signature of _ Dep, Sheriff 47.D e 42.day of 19 9 45. Signature of York L ' 46. D e HAFFE 43. County Sheriff L WILLIAM M. HOSE, SHERIFF 9/3/99 h1y Cc^•mi5 __ fglpa _ "? MV COMMIS NEXPIRES- 46. Signature of Foreign County Sheriff 49. Date 50. I ACKNOWLEDGE RECEIPT O THE SHERIFF'S RETURN SI GNATURE Sf. Date Rece ived OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriffs Office 4. BLUE - Sheriff's Office Curllberland County SHeriff SPACE BELOW FOR USE OF THE SHERIFF ONLY- DO NOT WRITE BELOW THIS LINE 13.1 admowledge receipt of the writ SIGNATURE OF AUTHORIZED CLERK 14. Date Receivetl 15. EzpiratlontwE p_ or complaint as indicated above. B. Feeser 8/25/99 9/15/99 16.HOW SERVED: PERSONAL RESIDENCE (A4--? POSTED( ) POE ( ) SHERIFF'S OFF ( ) OTHER ( ) SEE REMARKS UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF PENNSYLVANIA IN RE: JOHN H. WHITCOMB and Case No. (-gi-0 Q KATHLEEN G. WHITCOMB Chapter 7 Debtors Voluntary Petition \ O R D E R AND NOW, --) b --3_ day of 2000, upon consideration of the Motion to avoid judicial lien filed on November 15, 1999; and upon more detailed review of Sections 506(a), 522(f), and S22 (h) of the Bankruptcy Code; Lhe judicial lien held by respondent, Windsor Park Shopping Centers, L.L.P., in the above- captioned matter is hereby avoided. BY THE COURT: Honorable Roberk?J.-Woodside, C.B.J. CERTIFIED FAa'.; TI.1F. R_CORD this_fif20 03 rep _ acfk W L .Q N C M17 C_l ?a -_o v LI) 1 ?-L.