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Home My WebLink About99-05309J d; • LL RHOADS & S TENON LLP HENRY W. RHOADS ROBERT H. LONG, JR.' SHERILL T. MOYER JAN P. PADEN RICHARD B. WOOD LAWRENCE B. ABRAMS III- J. BRUCE WALTER JOHN P. MANISECK FRANK 1, LEBER PAUL A. LUNDEEN JACK F. HURLEY, IR. DAVID B, DOWLING DAVID F. O'LEARY DAVID 0. TWADDELL CHARLES I. FERRY STANLEY A. SMITH JENS H. DAMGAARD- DRAKE D. NICHOLAS THOMAS A. FRENCH DEAN H. DUSINSERRE DONNA N.J. CLARK 'ALSO ADMITTED TO IML I CHARLES E. GUTSMALL PAUL F. WESSELL SHAWN D. LOCHINGER JAMES H. CAWLEY LORI J. MCELROY DEAN F. PIERMATTEI TODD J. SHILL KENNETH L. JOEL ROBERT F. FRAZIER THOMAS J. NEHILLA KEVIN M. GOLD CARL D. LUNDBLAO STEPHEN MOWAK JAMES E. ELLISON RICHARD E. ARTELL ROBERT J. TRIBECK TIMOTHY 1. NIEMAN PAUL J. DELUDER, JR. JOANNE BOOK CHRISTINE SUSPI E. SCHWAII ANY J. MENDELSOHN. ORIDA BAR ATTORNEYS AT LAW OF COUNSEL DAUPHIN BANK BUILDING FRANK A. SIMON JOHN C. DOWLING TWELFTH FLOOR R. STEPHEN SHISLA ONE SOUTH MARKET SQUARE NATHAN H. WATERS, JR. -- P.O. BOX 1146 PAULH RHOADS H ARRISBURGF PA 17108-1146 907.1984 JOHN M. MUSSELMAN 1919.1960 TELEPHONE (717) 233.5731 CLYLE R. HENDERSHOT 1922-1980 FAX (717) 231-6626 DIRECT DIAL NO. EMAIL tnleman@rhoads-slnon.com 231-6614 October 12, 1999 FILE NO. 6954/03 Mr. Richard J. Pierce, Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, Pennsylvania 17103 r Re: Y-F Service Corp v Zamias Services Inc and PNC Bank, No. 99-5309 Dear Mr. Pierce: Enclosed for filing please find an original and three copies of Brief of Defendant Zamias Services, Inc. In Opposition to Plaintiffs Complaint to Enjoin Lease in the above-referenced matter. Kindly time-stamp an extra copy and return it to me with the person making this delivery. Thank you for your assistance. Very truly yours, RHOADS & SINON LLP By. ` I Tlimo-thhy J. Nieman encls. cc: Counsel of Record J 141179.1 YORK OFFICE. LANCASTER OFFICE: AFF.LIATED OFFICE: CHARLES L. SIECK, ESQUIRE SUITE 31. It N, CHERRY LANE, YORK, PA 17401 15 NORTH LIME STREET. LANCASTER, PA 17601 STE. 103. 1700 S. DIXIE HWY. BOCA RAYON, FL 31431 TELEPHONE (117) 843.1713. FAX (717) 131.1459 TELEPHONE (711) 391.4431. FAX (711) 232.1459 TELEPHONE (561) 395.5595, FAX 15615 395-9497 V-F SERVICE CORP., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No. 99-5309 ZAMIAS SERVICES, INC. Civil Term and PNC BANK Defendants BRIEF OF DEFENDANT ZAMIAS SERVICES. INC. IN OPPOSITION TO PLAINTIFF'S COMPLAINT TO ENJOIN LEASE It is no secret that the M.J. Carlisle Mall (the "Mall") is in dire need of revitalization. The Mall, which at one time was a vital component of the Carlisle shopping and economic community, has fallen upon hard times. Zamias Services, Inc. (` Zamias") and Sun Life Insurance Company of America ("Sun Life") have a plan in place to redevelop this property with a Super Wal-Mart store which will infuse over $40,000,000 in yearly retail sales dollars to the Carlisle area. This revitalization plan, however, requires the temporary relocation of PNC Bank ("PNC") from its current location inside the Mall, to a building located on the Mall's property (the "Building") while the Mall is demolished. PNC will move inside the Wal-Mart once construction is completed. Y-F Services, Inc. ("Y-F") seeks to scuttle this project by requesting that an injunction issue prohibiting PNC from making this temporary move. Y-F claims that this temporary relocation violates a restrictive covenant contained in a lease in effect when Y-F operated a bank 3141-19.2 in the Building that PNC will occupy. However, because Y-F cannot demonstrate the essential requirements for an injunction, its request for such relief must be denied. I. PROCEDURAL HISTORY On or about August 30, 1999, Y-F filed its Complaint to Enjoin Violation of Lease against Defendants Zamias Services, Inc. ("Zamias") and PNC Bank. At that time, Y-F sought an ex parte injunction enjoining PNC's proposed move. The Court denied that request and scheduled a hearing. Zamias filed its Answer with New Matter. PNC filed Preliminary Objections to Y-F's Complaint and was subsequently dismissed from the lawsuit. Sun Life was added to this action by amended complaint. 11. STATEMENT OF FACTS The Mall is located in Carlisle, Pennsylvania and at one time was a vibrant shopping center servicing Carlisle and the surrounding area. Like many other malls of this vintage, the Mall now stands practically vacant and is losing significant amounts of money daily. One of the only tenants remaining in the Mall is PNC, which has been located therein since the Mall opened in 1965, well before Y-F moved into the Building. Shuman-Carlisle Mall Associates ("Shuman") was the previous owner of the Mall. Sun Life held the mortgage on the Mall and foreclosed on the mortgage. As a result, Sun Life obtained title to the Mall at sheriffs sale on or about March 8. 1995 from Shuman. Currently Zamias and Sun Life are in the process of adding a Super Wal-Mart ("Wal- Mart") to the property, with the anchor tenants remaining. This redevelopment plan requires the demolition of the Mall and construction of the Wal-Mart store. It is anticipated that the Wal- Mart will employ up to 300 people and will have yearly sales in excess of $40,000,000. This, of course, will have a ripple effect on the Carlisle regional economy since the Wal-Mart will reverse the outflow of shoppers from the Carlisle area and actually attract shoppers from other areas. As part of the Wal-Mart revitalization, PNC is slated to establish an office inside the Wal-Mart, once that project is completed. During the demolition of the Mall and construction of the Wal-Mart, estimated to take approximately eight months, PNC needs to be temporarily relocated to another location. Sitting on the Mall property is the Building, that now sits vacant and once housed York Federal, the banking arm of Y-F. It is anticipated that PNC will temporarily move into the vacant Building, rent free, while the Wal-Mart is constructed. Due to the terms of the lease between PNC and Sun Life, if a temporary location cannot be provided, the Wal-Mart will not be built and the Mall will continue to lose money and remain in its current state. Y-F entered into an Agreement of Lease (the "Lease") with Shuman dated July 17, 1989, pursuant to which Y-F leased the now vacant Building on the Mall's property that PNC is to move into. The lease, in addition to the usual terms and conditions, contained a restrictive covenant that provides: 58.1 LEASE MODIFICATIONS: This Lease is intended to be a land lease, with ownership of the improvements thereon vested in Lessee during the original term of this Lease and during the term or terms of any properly exercised option(s). Upon the expiration of this Lease or the last of any properly exercised option term, whichever comes last, title to said improvements shall vest in Lessor except that Lessor may not sell, lease or rent, said improvements for use as a savings and loan or bank if Lessee at such time occupies a location for use as a banking facility within a five mile radius of the Demised Premises. Such restriction shall terminate at such time as Lessee fails to occupy a location for use as a banking facility within a five mile radius of the Demised Premises, or ten years after the premises are vacated by Lessee, whichever comes first. In the event of Lessee's default this restriction as to subsequent occupancies shall not apply. It is this provision that Y-F now seeks to enforce. The Lease also contained a subordination clause that provides: 44. SUBORDINATION: Lessor and Lessee agree that this Lease shall be and the same hereby is made subject and subordinate at all times to all covenants, restrictions, easements and encumbrances now or hereafter affecting all or any part of the fee title of the Shopping Center and to all ground and underlying leases and mortgages or any other method of financing or refinancing covering the said fee title or any interest therein in any amounts, and all advances thereon, which may now or hereafter be placed against all or any part of the land and/or Buildings and improvements now or hereafter constituting a part of the Shopping Center, and to all renewals, modifications, consolidations, participations, replacements and extensions thereof. The term "mortgages" as used herein shall be deemed to include trust indentures and deeds of trust. The aforesaid provisions shall be self-operative and no further instrument of subordination shall be necessary unless required by any such ground or underlying lessors or mortgagees. Following the sheriffs sale and Sun Life's acquisition of the Mall, Y-F and Sun entered into a Shopping Center Lease Agreement (the "Agreement") dated March 8, 1995 that is specifically separate and distinct from the Lease. Pursuant to the Agreement, the new lease was to be month-to-month and incorporated certain provisions of the Lease provided that the Lease was "in effect as of the date at which ownership of the Mall passed to Landlord at Foreclosure Sale. . ." Provided that this condition was met, the Agreement specifically excluded from incorporation any terms of the Lease "relating to the ... subject matters" of "Term, Termination, Renewal or Extension, Option to Renew or Extend". Sun Life subsequently terminated the Agreement with Y-F and Y-F vacated the Building on or about June 13, 1997. The Building has sat vacant since that time. III. STATEMENT OF QUESTION INVOLVED SHOULD AN INJUNCTION BE DENIED WHERE THE MOVING PARTY CANNOT DEMONSTRATE A CLEAR RIGHT TO RELIEF, AN IMMEDIATE HARM, OR AN IRREPARABLE INJURY AND WHERE MORE HARM WOULD RESULT FROM THE ISSUANCE OF AN INJUNCTION? SUGGESTED ANSWER: Yes. IV. LEGAL DISCUSSION In order to obtain injunctive relief, "the plaintiffs right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted." Sovereign Bank v Harper, 449 Pa. Super. 578, 590, 674 A.2d 1085, 1091 (1996). Courts also consider whether a "greater injury would result by refusing [an injunction] rather than by granting it." Albee Homes Inc v. Caddie Homes Inc., 417 Pa. 177, 181, 207 A.2d 768, 769 (1965). As such, the burden is on the party seeking an injunction to establish both the right to relief and the inequitable nature of the defendant's conduct. Burns v. Baumgardner, 303 Pa. Super. 85, 96, 449 A.2d 590, 595 (1982); Plymouth Woods Corp v. Maxwell, 407 Pa. 539, 542, 181 A.2d 321, 323 (1962). In the context of restrictive covenants, injunctive relief is considered a "harsh remedy" that will be granted only "when the essential prerequisites are met." Lehi v. Ciccarone, 24 Ches. Co. Rep. 61 (1976) (citing Credit Alliance Corp v Phila Minit-Man Car Wash Corp., 450 Pa. 367, 301 A.2d 816 (1973)). In addition, because such covenants place restrictions on the use of land, they are strictly construed against the party seeking to enforce the restriction and courts are reluctant to grant injunctions in this context. Great Atlantic and Pacific Tea Co Inc v Bailey, 421 Pa. 540, 220 A.2d 1 (1966); Plymouth Woods Corp v Maxwell, 407 Pa. 539,181 A.2d 321 (1962). Against this background, and as set forth below, it is clear that Y-F cannot satisfy or demonstrate any, let alone all, of the prerequisites for obtaining injunctive relief. A. Y-F LACKS A CLEAR RIGHT TO RELIEF As outlined below, Y-F does not have a clear right to the relief it has requested. A such, the injunction can not be entered. 1. The restrictive covenant is not a term of the Agreement and thus is unenforceable. As a preliminary matter, Y-F must prove that the restrictive covenant is a term of the Agreement between it and Sun Life. Since the Lease was not in effect when Sun Life purchased the Mall, did not incorporate the restrictive covenant and the restrictive covenant expired by its own terms, an injunction is inappropriate because the restrictive covenant is not applicable. 6 a. The restrictive covenant was not incorporated into the Agreement because the Lease was not in effect when Sun Life purchased the Mall. The restrictive covenant is contained in the Lease between Y-F and Shuman. Since the Lease contained a subordination clause, the Lease became null and void when Sun Life foreclosed on the Mall and purchased it at sheriff s sale. See Albert J. Grosser v. Rosen, 436 Pa. 311, 259 A.2d 679 (1969); Unity Say. Assoc. v. American Urban Sciences Foundation Inc., 337 Pa. Super. 470, 487 A.2d 356 (1984). Thus, the restrictive covenant, to be effective, must have been incorporated into the Agreement between Y-F and Sun Life. Here, the Agreement specifically provides that certain terms of the Lease will be incorporated into the Agreement only if the Lease was "in effect as of the date at which ownership of the Mall passed to Landlord [Sun Life] at foreclosure sale." (Agreement, $ 4). As a matter of law, when title passed to Sun Life at the sheriffs sale the Lease became null and void and thus was not in effect as of that date. See Id. Accordingly, the restrictive covenant was not incorporated into the Agreement and is of no effect. b. The restrictive covenant was specifically excluded from incorporation into the Agreement. The Agreement specifically excludes from incorporation, the following "subject matters" ofthe Lease: Term Termination Renewal or Extension Options to Renew or Extend Since the restrictive covenant deals with the term of the Lease and termination of the Lease, it was not incorporated into the Agreement. The restrictive covenant, in its first sentence, deals with the nature of the Lease during the term of the Lease. The second sentence of the Lease explains what happens if the Lease term expires, i.e. the Lease terminates. More specifically, the restrictive covenant specifically deals with a restriction that is only applicable if the Lease terminates. Likewise, the restrictive covenant is Paragraph 58.1 and follows directly after Paragraph 58 captioned "Options to Renew". To that end, the word term is used four times in the restrictive covenant, the word option is used twice and the term expiration is used once. Thus, the restrictive covenant relates to the subject matters of "term", "termination", "renewal and extension" or "options to renew or extend" in that it sets forth what happens if the Lease terminates and is dependant upon the term of the Lease and extensions and renewals thereof. As such, the restrictive covenant was not incorporated into the Agreement. C. The restrictive covenant expired by its own terms. By its owa terms, the restrictive covenant applies only to the original term and to the term of any properly exercised options. (Lease, ¶ 58.1). The Agreement specifically excluded the Term provision of the Lease, instead establishing a month-to-month term. Thus, since the Agreement did not incorporate the "original term" of the Lease, as the phrase is used in the Lease, the restrictive covenant expired by its own terms and is of no effect. 2. The restrictive covenant, strictly construed, does not apply to the instant situation. Since restrictions on the use of land are generally disfavored in the law, restrictive covenants are strictly construed against the party seeking to enforce the covenant. See Great Atlantic and Pacific Tea Co. Inc. v. Baile, 421 Pa. 540, 220 A.2d I (1966). Additionally, any "ambiguity in a restrictive covenant must be construed against the one to be benefited by the restriction." Id. at 545, 220 A.2d at I Accordingly, an injunction is not appropriate where, like here, the restrictive covenant, when strictly construed, does not apply to the proposed land use. Id.; 24 Ches.Co.Rep. at 69. Here, assuming that the restrictive covenant is part of the Agreement, pursuant to the terms of the restrictive covenant, Sun Life "may not sell, lease or rent" the building "for use as a savings and loan or bank". Since Sun Life intends to place PNC into the building temporarily rent free, the issue is whether pursuant to this arrangement Sun Life will "lease or rent" the building to PNC. Webster's New Riverside Dictionary defines the verb "lease" as "To grant occupation or use under the terms of a lease." The noun "lease" is defined as "A contract granting occupation or use of property during a certain period in exchange for a specified rent." The noun "rent" is defined as "Payment, usually of an amount set by contract, made by a tenant at designated intervals in return for the right to occupy or use another's property." Likewise, the verb "rent" is defined as "To obtain occupancy or use of (another's property) in return for periodic payments." Thus, strictly construing the restrictive covenant against Y-F, Sun Life will "lease" or "rent" the building to PNC only if it is paid for use of the building. Since PNC will not be making any payment for the building, the restrictive covenant is not implicated. 3. The characteristics of the property have changed, thus rendering the restrictive covenant inoperable. An injunction should be refused when changes involving the characteristics of the property occur and make it impossible to achieve the result contemplated by the restrictive covenant. Snyder v. Plankenhorn, 398 Pa. 540, 543, 159 A.2d 209, 210 (1960) (noting that "[t]he changed character of the area should stay the hand of equity"); Daniels v. Notor, 389 Pa. 510, 133 A.2d 520 (1957). Because of the continued financial failure of the Mall, the characteristics and nature of the Mall property have changed significantly since the time that the covenant was entered into. As a result of these changes, it has become necessary to demolish the Mall to ensure its future through the construction of the Wal-Mart. Therefore, these dramatic changes to the property make the covenant inoperable, particularly where the enforcement of it would not serve an equitable purpose but would instead serve to destroy a unique opportunity to revitalize both the property and the region. B. SINCE Y-F'S INJURY, IF ANY, CAN BE COMPENSATED BY MONEY DAMAGES, Y-F LACKS AN IMMEDIATE AND IRREPARABLE INJURY. Assuming that Y-F has established its clear right to relief, it must also prove an immediate and irreparable harm. To make this showing, it is well-settled that the plaintiff must show its loss is not entirely ascertainable and compensable by money damages. New Castle Orthopedics Assoc. v. Bums. 481 Pa. 460, 465, 392 A.2d 1383, 1385 (1978); Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Coro, 450 Pa. 367, 371, 301 A.2d 816, 818 (1973); Boehm v. Univ. of Penn. School of Veterinary Medicine, 392 Pa. Super. 502, 523, 573 A.2d 575, 10 586 (1990); Lelii, 24 Chest. Co. Rep. at 64. In short, Y-F must prove that it cannot be compensated by money damages and that damages, if any, would be difficult to prove. Id. While Y-F has failed to allege any injury in its Complaint, Y-F's damages, if any, are purely economic and thus, Y-F can be provided with a full, complete and adequate remedy at law. Specifically, Y-F's damages, again if any, would be in the form of lost customers and deposits, which an action for damages, if proven, can remedy. Additionally, there is no real likelihood of damages to Y-F in this case. Currently, PNC operates in the Mall and will merely be moving its operations a few feet on the same property. Additionally, PNC has always been in the Mall, even before Y-F occupied the Building and entered into the Lease. Thus, the Lease and the restrictive covenant were entered into with the knowledge and express understanding that PNC would be a competitor at that location. This is not the situation where a new competitor moves into the Building pursuant to a long term lease. PNC is already there, and has always been there, competing against Y-F. Likewise, PNC's occupancy of the Building is only temporary until the completion of the Wal-Mart. C. SINCE IF THE INJUNCTION ISSUES, THE WAL-MART DEAL WILL BE JEOPARDIZED. THE BALANCE OF EQUITIES FAVORS THE DENIAL OF THE INJUNCTION. While Y-F lacks a clear right to relief and irreparable injury, perhaps the most compelling reason that the injunction should not issue is that the harm that would result from granting the injunction is greater than any benefit which might accrue if an injunction is granted. In the context of restrictive covenants involving real property, the goal must be to avoid more harm being caused by the issuance of injunctive relief. Bums v. Baumgardner, 303 Pa. Super. 85, 96, 449 A.2d 590, 595 (1982); Plymouth Woods Corp. v. Maxwell, 407 Pa. 539, 542, 181 A.2d 321, 323 (1962). The Mall is suffering from serious financial problems and loses money every day. If the Wal-Mart is not constructed the Mall's future is uncertain and the property could end up sitting vacant. The Wal-Mart, however, will revitalize this property and provide a significant economic boast to the Carlisle region. As stated above, this project will provide up to 300 jobs and over $40,000,000 in yearly sales to the region. For the Wal-Mart to proceed, however, PNC must occupy the Building temporarily to allow the Wal-Mart to be constructed in the Mall area where PNC currently operates its banking facility. If PNC cannot relocate into the Building, it is unlikely that the project will proceed because it will be too costly to relocate PNC or buy-out its lease. The economic and social benefits to the community of building the Wal-Mart which, taken together, far outweigh any benefit that may be gained by preventing PNC temporarily occupying the Building due to some unarticulated and highly speculative injury imagined by Y- F. There would be significantly more harm created by granting the injunction and preventing PNC from its temporary occupancy in the Building, which would in turn have the effect of preventing a vital and job producing business from entering the area and revitalizing the Mall property and the surrounding communities. 12 VI. CONCLUSION For all of the foregoing reasons, Y-F's Service Corp.'s request for an injunction must be denied. Respectfully Submitted, RHOADS & SINON LLP By: ` 1.e&4z Timothy J. Nieman Attorney I.D. 66024 Kevin M. Gold Attorney I.D. 70265 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Date: October 12, 1999 Zarnias Services, Inc. 13 CERTIFICATE OF SERVICE I hereby certify that on this 12'h day of October, 1999 the foregoing Brief of Defendant Zamias Services, Inc. in Opposition to Plaintiffs Complaint to Enjoin Lease was served via first class mail upon the persons listed below: Benjamin F. Riggs, Jr., Esq. Y-F Service Corp. 101 South George Street York, PA 17401 (Attorney for Plaintiff) Dara D. Boozel A. I OCT 1 2 19990 Y-F SERVICE CORP., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No. 99-5309 ZAMIAS SERVICES, INC. Civil Term and PNC BANK Defendants )14147.2 BRIEF OF DEFENDANT ZAMIAS SERVICES INC. IN OPPOSITION TO PLAINTIFF'S COMPLAINT TO ENJOIN LEASE It is no secret that the M.J. Carlisle Mall (the "Mall") is in dire need of revitalization. The Mall, which at one time was a vital component of the Carlisle shopping and economic community, has fallen upon hard times. Zamias Services, Inc. ("Zamias") and Sun Life Insurance Company of America ("Sun Life") have a plan in place to redevelop this property with a Super Wal-Mart store which will infuse over $40,000,000 in yearly retail sales dollars to the Carlisle area. This revitalization plan, however, requires the temporary relocation of PNC Bank ("PNC") from its current location inside the Mall, to a building located on the Mall's property (the "Building") while the Mall is demolished. PNC will move inside the Wal-Mart once construction is completed. Y-F Services, Inc. ("Y-F") seeks to scuttle this project by requesting that an injunction issue prohibiting PNC from making this temporary move. Y-F claims that this temporary relocation violates a restrictive covenant contained in a lease in effect when Y-F operated a bank Y; in the Building that PNC will occupy. However, because Y-F cannot demonstrate the essential requirements for an injunction, its request for such relief must be denied. I. PROCEDURAL HISTORY On or about August 30, 1999, Y-F filed its Complaint to Enjoin Violation of Lease against Defendants Zamias Services, Inc. ("Zamias") and PNC Bank. At that time, Y-F sought an ex pane injunction enjoining PNC's proposed move. The Court denied that request and scheduled a hearing. Zamias filed its Answer with New Matter. PNC filed Preliminary Objections to Y-F's Complaint and was subsequently dismissed from the lawsuit. Sun Life was added to this action by amended complaint. If. STATEMENT OF FACTS The Mall is located in Carlisle, Pennsylvania and at one time was a vibrant shopping center servicing Carlisle and the surrounding area. Like many other malls of this vintage, the Mall now stands practically vacant and is losing significant amounts of money daily. One of the only tenants remaining in the Mall is PNC, which has been located therein since the Mall opened in 1965, well before Y-F moved into the Building. Shuman-Carlisle Mall Associates ("Shuman") was the previous owner of the Mall. Sun Life held the mortgage on the Mall and foreclosed on the mortgage. As a result, Sun Life obtained title to the Mall at sheriffs sale on or about March S, 1995 from Shuman. Currently Zamias and Sun Life are in the process of adding a Super Wal-Mart ("Wal- Mart") to the property, with the anchor tenants remaining. This redevelopment plan requires the demolition of the Mall and construction of the Wal-Mart store. It is anticipated that the Wal- Mart will employ up to 300 people and will have yearly sales in excess of $40,000,000. This, of course, will have a ripple effect on the Carlisle regional economy since the Wal-Mart will reverse the outflow of shoppers from the Carlisle area and actually attract shoppers from other areas. As part of the Wal-Mart revitalization, PNC is slated to establish an office inside the Wal-Mart, once that project is completed. During the demolition of the Mall and construction of the Wal-Mart, estimated to take approximately eight months, PNC needs to be temporarily relocated to another location. Sitting on the Mall property is the Building, that now sits vacant and once housed York Federal, the banking arm of Y-F. It is anticipated that PNC will temporarily move into the vacant Building, rent free, while the Wal-Mart is constructed. Due to the terms of the lease between PNC and Sun Life, if a temporary location cannot be provided, the Wal-Mart will not be built and the Mall will continue to lose money and remain in its current state. Y-F entered into an Agreement of Lease (the "Lease") with Shuman dated July 17, 1989, pursuant to which Y-F leased the now vacant Building on the Mall's property that PNC is to move into. The Lease, in addition to the usual terms and conditions, contained a restrictive covenant that provides: 58.1 LEASE MODIFICATIONS: This Lease is intended to be a land lease, with ownership of the improvements thereon vested in Lessee during the original term of this Lease and during the term or terms of any properly exercised option(s). Upon the expiration of this Lease or the last of any properly exercised option term, whichever comes last, title to said improvements shall vest in Lessor except that Lessor may not sell, lease or rent, said improvements for use as a savings and loan or bank if Lessee at such time occupies a location for use as a banking facility within a five mile radius of the Demised Premises. Such restriction shall terminate at such time as Lessee fails to occupy a location for use as a banking facility within a five mile radius of the Demised Premises, or ten years after the premises are vacated by Lessee, whichever comes first. In the event of Lessee's default this restriction as to subsequent occupancies shall not apply. It is this provision that Y-F now seeks to enforce. The Lease also contained a subordination clause that provides: 44. SUBORDINATION: Lessor and Lessee agree that this Lease shall be and the same hereby is made subject and subordinate at all times to all covenants, restrictions, easements and encumbrances now or hereafter affecting all or any part of the fee title of the Shopping Center and to all ground and underlying leases and mortgages or any other method of financing or refinancing covering the said fee title or any interest therein in any amounts, and all advances thereon, which may now or hereafter be placed against all or any part of the land and/or Buildings and improvements now or hereafter constituting a part of the Shopping Center, and to all renewals, modifications, consolidations, participations, replacements and extensions thereof. The term ,'mortgages" as used herein shall be deemed to include trust indentures and deeds of trust. The aforesaid provisions shall be self-operative and no further instrument of subordination shall be necessary unless required by any such ground or underlying lessors or mortgagees. Following the sheriffs sale and Sun Life's acquisition of the Mall, Y-F and Sun entered into a Shopping Center Lease Agreement (the "Agreement") dated March 8, 1995 that is specifically separate and distinct from the Lease. Pursuant to the Agreement, the new lease was to be month-to-month and incorporated certain provisions of the Lease provided that the Lease was "in effect as of the date at which ownership of the Mall passed to Landlord at Foreclosure 4 Sale ..." Provided that this condition was met, the Agreement specifically excluded from incorporation any terms of the Lease "relating to the ... subject matters" of "Term, Termination, Renewal or Extension, Option to Renew or Extend". Sun Life subsequently terminated the Agreement with Y-F and Y-F vacated the Building on or about June 13, 1997. The Building has sat vacant since that time. III. STATEMENT OF QUESTION INVOLVED SHOULD AN INJUNCTION BE DENIED WHERE THE MOVING PARTY CANNOT DEMONSTRATE A CLEAR RIGHT TO RELIEF, AN IMMEDIATE HARM, OR AN IRREPARABLE INJURY AND WHERE MORE HARM WOULD RESULT FROM THE ISSUANCE OF AN INJUNCTION? SUGGESTED ANSWER: Yes. IV. LEGAL DISCUSSION In order to obtain injunctive relief, "the plaintiffs right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted." Sovereign Bank v Hamer, 449 Pa. Super. 578, 590, 674 A.2d 1085, 1091 (1996). Courts also consider whether a "greater injury would result by refusing [an injunction] rather than by granting it." Albee Homes. Inc. v. Caddie Homes Inc-, 417 Pa. 177, 181, 207 A.2d 768, 769 (1965). As such, the burden is on the party seeking an injunction to establish both the right to relief and the inequitable nature of the defendant's conduct. Bums v. Baumgardner, 303 Pa. Super. 85, 96, 449 A.2d 590, 595 (1982); Plymouth Woods Com. v. Maxwell, 407 Pa. 539, 542, 181 A.2d 321, 323 (1962). In the context of restrictive covenants, injunctive relief is considered a "harsh remedy- that will be granted only "when the essential prerequisites are met." Lelii v. Ciccarone, 24 Ches. Co. Rep. 61 (1976) (citing Credit Alliance Coro v Phila Minit-Man Car Wash Corn., 450 Pa. 367, 301 A.2d 816 (1973)). In addition, because such covenants place restrictions on the use of land, they are strictly construed against the party seeking to enforce the restriction and courts are reluctant to grant injunctions in this context. Great Atlantic and Pacific Tea Co. Inc. v. Bailey, 421 Pa. 540, 220 A.2d 1 (1966); Plymouth Woods Corr). v. Maxwell, 407 Pa. 539,181 A.2d 321 (1962). Against this background, and as set forth below, it is clear that Y-F cannot satisfy or demonstrate any, let alone all, of the prerequisites for obtaining injunctive relief. A. Y-F LACKS A CLEAR RIGHT TO RELIEF As outlined below, Y-F does not have a clear right to the relief it has requested. A such, the injunction can not be entered. 1. The restrictive covenant is not a term of the Agreement and thus is unenforceable. As a preliminary matter, Y-F must prove that the restrictive covenant is a term of the Agreement between it and Sun Life. Since the Lease was not in effect when Sun Life purchased the Mall, did not incorporate the restrictive covenant and the restrictive covenant expired by its own terns, an injunction is inappropriate because the restrictive covenant is not applicable. a. The restrictive covenant was not incorporated into the Agreement because the Lease was not in effect when Sun Life Purchased the Mall. The restrictive covenant is contained in the Lease between Y-F and Shuman. Since the Lease contained a subordination clause, the Lease became null and void when Sun Life foreclosed on the Mall and purchased it at sheriff s sale. See Albert I Grosser v Rosen, 436 Pa. 311, 259 A.2d 679 (1969); Un_ittySay. Assoc v American Urban Sciences Foundation Inc., 337 Pa. Super. 470, 487 A.2d 356 (1984). Thus, the restrictive covenant, to be effective, must have been incorporated into the Agreement between Y-F and Sun Life. Here, the Agreement specifically provides that certain terms of the Lease will be incorporated into the Agreement only if the Lease was "in effect as of the date at which ownership of the Mall passed to Landlord [Sun Life] at foreclosure sale." (Agreement, ¶ 4). As a matter of law, when title passed to Sun Life at the sheriffs sale the Lease became null and void and thus was not in effect as of that date. See Id. Accordingly, the restrictive covenant was not incorporated into the Agreement and is of no effect. b. The restrictive covenant was specifically excluded from incorporation into the Agreement. The Agreement specifically excludes from incorporation, the following "subject matters" of the Lease: Tenn Termination Renewal or Extension Options to Renew or Extend Since the restrictive covenant deals with the term of the Lease and termination of the Lease, it was not incorporated into the Agreement. The restrictive covenant, in its first sentence, deals with the nature of the Lease during the term of the Lease. The second sentence of the Lease explains what happens if the Lease term expires, i.e. the Lease terminates. More specifically, the restrictive covenant specifically deals with a restriction that is only applicable if the Lease terminates. Likewise, the restrictive covenant is Paragraph 58.1 and follows directly after Paragraph 58 captioned "Options to Renew". To that end, the word term is used four times in the restrictive covenant, the word option is used twice and the term expiration is used once. Thus, the restrictive covenant relates to the subject matters of "term", "termination", "renewal and extension" or "options to renew or extend" in that it sets forth what happens if the Lease terminates and is dependant upon the term of the Lease and extensions and renewals thereof. As such, the restrictive covenant was not incorporated into the Agreement. C. The restrictive covenant expired by its own terms. By its own terms, the restrictive covenant applies only to the original term and to the term of any properly exercised options. (Lease, ¶ 58.1). The Agreement specifically excluded the Term provision of the Lease, instead establishing a month-to-month term. Thus, since the Agreement did not incorporate the "original term" of the Lease, as the phrase is used in the Lease, the restrictive covenant expired by its own terms and is of no effect. 2. The restrictive covenant, strictly construed, does not apply to the instant situation. Since restrictions on the use of land are generally disfavored in the law, restrictive covenants are strictly construed against the party seeking to enforce the covenant. See Great Atlantic and Pacific Tea Co., Inc v Bailey, 421 Pa. 540, 220 A.2d 1 (1966). Additionally, any "ambiguity in a restrictive covenant must be construed against the one to be benefited by the restriction." Id. at 545, 220 A.2d at 3. Accordingly, an injunction is not appropriate where, like here, the restrictive covenant, when strictly construed, does not apply to the proposed land use. Id.; 24 Ches.Co.Rep. at 69. Here, assuming that the restrictive covenant is part of the Agreement, pursuant to the terms of the restrictive covenant, Sun Life "may not sell, lease or rent" the building "for use as a savings and loan or bank". Since Sun Life intends to place PNC into the building temporarily rent free, the issue is whether pursuant to this arrangement Sun Life will "lease or rent" the building to PNC. Webster's New Riverside Dictionary defines the verb "lease" as "To grant occupation or use under the terms of a lease." The noun "lease" is defined as "A contract granting occupation or use of property during a certain period in exchange for a specified rent." The noun "rent" is defined as "Payment, usually of an amount set by contract, made by a tenant at designated intervals in return for the right to occupy or use another's property." Likewise, the verb "rent" is defined as "To obtain occupancy or use of (another's property) in return for periodic payments." Thus, strictly construing the restrictive covenant against Y-F, Sun Life will "lease" or "rent" the building to PNC only if it is paid for use of the building. Since PNC will not be making any payment for the building, the restrictive covenant is not implicated. 3. The characteristics of the property have changed, thus rendering the restrictive covenant inoperable. An injunction should be refused when changes involving the characteristics of the property occur and make it impossible to achieve the result contemplated by the restrictive covenant. Snyder v. Plankenhom, 398 Pa. 540, 543, 159 A.2d 209, 210 (1960) (noting that "[tjhe changed character of the area should stay the hand of equity"); Daniels v. Notor, 389 Pa. 510, 133 A.2d 520 (1957). Because of the continued financial failure of the Mall, the characteristics and nature of the Mall property have changed significantly since the time that the covenant was entered into. As a result of these changes, it has become necessary to demolish the Mall to ensure its future through the construction of the Wal-Mart. Therefore, these dramatic changes to the property make the covenant inoperable, particularly where the enforcement of it would not serve an equitable purpose but would instead serve to destroy a unique opportunity to revitalize both the property and the region. B. SINCE Y-F'S INJURY, IF ANY, CAN BE COMPENSATED BY MONEY DAMAGES. Y-F LACKS AN IMMEDIATE AND IRREPARABLE INJURY. Assuming that Y-F has established its clear right to relief, it must also prove an immediate and irreparable harm. To make this showing, it is well-settled that the plaintiff must show its loss is not entirely ascertainable and compensable by money damages. New Castle Orthopedics Assoc v Burns 481 Pa. 460, 465, 392 A.2d 1383, 1385 (1978); Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 371, 301 A.2d 816,818 (1973); Boehm v. Univ. of Penn. School of Veterinary Medicine, 392 Pa. Super. 502, 523, 573 A.2d 575, 10 586 (1990); L &W, 24 Chest. Co. Rep, at 64. In short, Y-F must prove that it cannot be compensated by money damages and that damages, if any, would be difficult to prove. Id. While Y-F has failed to allege any injury in its Complaint, Y-F's damages, if any, are purely economic and thus, Y-F can be provided with a full, complete and adequate remedy at law. Specifically, Y-F's damages, again if any, would be in the form of lost customers and deposits, which an action for damages, if proven, can remedy. Additionally, there is no real likelihood of damages to Y-F in this case. Currently, PNC operates in the Mall and will merely be moving its operations a few feet on the same property. Additionally, PNC has always been in the Mall, even before Y-F occupied the Building and entered into the Lease. Thus, the Lease and the restrictive covenant were entered into with the knowledge and express understanding that PNC would be a competitor at that location. This is not the situation where a new competitor moves into the Building pursuant to a long term lease. PNC is already there, and has always been there, competing against Y-F. Likewise, PNC's occupancy of the Building is only temporary until the completion of the Wal-Mart. C. SINCE IF THE INJUNCTION ISSUES, THE WAL-MART DEAL WILL BE JEOPARDIZED. THE BALANCE OF EQUITIES FAVORS THE DENIAL OF THE INJUNCTION. While Y-F lacks a clear right to relief and irreparable injury, perhaps the most compelling reason that the injunction should not issue is that the harm that would result from granting the injunction is greater than any benefit which might accrue if an injunction is granted. In the context of restrictive covenants involving real property, the goal must be to avoid more harm being caused by the issuance of injunctive relief. Burns v. Baumgardner, 303 Pa. Super. 85, 96, 449 A.2d 590,595 (1982); Plymouth Woods Com v Maxwell, 407 Pa. 539, 542, 181 A.2d 321, 323 (1962). The Mall is suffering from serious financial problems and loses money every day. If the Wal-Mart is not constructed the Mall's future is uncertain and the property could end up sitting vacant. The Wal-Mart, however, will revitalize this property and provide a significant economic boast to the Carlisle region. As stated above, this project will provide up to 300 jobs and over $40,000,000 in yearly sales to the region. For the Wal-Mart to proceed, however, PNC must occupy the Building temporarily to allow the Wal-Mart to be constructed in the Mall area where PNC currently operates its banking facility. If PNC cannot relocate into the Building, it is unlikely that the project will proceed because it will be too costly to relocate PNC or buy-out its lease. The economic and social benefits to the community of building the Wal-Mart which, taken together, far outweigh any benefit that may be gained by preventing PNC temporarily occupying the Building due to some unarticulated and highly speculative injury imagined by Y- F. There would be significantly more harm created by granting the injunction and preventing PNC from its temporary occupancy in the Building, which would in turn have the effect of preventing a vital and job producing business from entering the area and revitalizing the Mall property and the surrounding communities. 12 VI. CONCLUSION For all of the foregoing reasons, Y-F's Service Corp.'s request for an injunction must be denied. Respectfully Submitted, RHOAAD.SS&& SI'JNOON LLP By: "'"II' Timothy J. Nieman Attorney I.D. 66024 Kevin M. Gold Attorney I.D. 70265 One South Market Square P. 0. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Date: October 12, 1999 Zamias Services, Inc. 13 CERTIFICATE OF SERVICE I hereby certify that on this 121h day of October, 1999 the foregoing Brief of Defendant Zamias Services, Inc. in Opposition to Plaintiffs Complaint to Enjoin Lease was served via first class mail upon the persons listed below: Benjamin F. Riggs, Jr., Esq. Y-F Service Corp. 101 South George Street York, PA 17401 (Attorney for Plaintiff) Dara D. Booze] OCT 12 1999bb Y-F SERVICE CORP., plaintiff, v. ZAMIAS SERVICES, INC. and PNC BANK Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 99-5309 Civil Term BRIEF OF DEFENDANT ZAMIAS SERVICES INC. IN OPPOSITION TO PLAINTIFF'S COMPLAINT TO ENJOIN LEASE It is no secret that the M.J. Carlisle Mall (the "Mall") is in dire need of revitalization. The Mall, which at one time was a vital component of the Carlisle shopping and economic community, has fallen upon hard times. Zamias Services, Inc. ("Zamias") and Sun Life Insurance Company of America ("Sun Life") have a plan in place to redevelop this property with a Super Wal-Mart store which will infuse over $40,000,000 in yearly retail sales dollars to the Carlisle area. This revitalization plan, however, requires the temporary relocation of PNC Bank ("PNC") from its current location inside the Mall, to a building located on the Mall's property (the "Building") while the Mall is demolished. PNC will move inside the Wal-Mart once construction is completed. Y-F Services, Inc. ("Y-F") seeks to scuttle this project by requesting that an injunction issue prohibiting PNC from making this temporary move. Y-F claims that this temporary relocation violates a restrictive covenant contained in a lease in effect when Y-F operated a bank 114149.2 in the Building that PNC will occupy. However, because Y-F cannot demonstrate the essential requirements for an injunction, its request for such relief must be denied. I. PROCEDURAL HISTORY On or about August 30, 1999, Y-F filed its Complaint to Enjoin Violation of Lease against Defendants Zamias Services, Inc. ("Zamias") and PNC Bank. At that time, Y-F sought an ex parte injunction enjoining PNC's proposed move. The Court denied that request and scheduled a hearing. Zamias filed its Answer with New Matter. PNC filed Preliminary Objections to Y-F's Complaint and was subsequently dismissed from the lawsuit. Sun Life was added to this action by amended complaint. II. STATEMENT OF FACTS The Mall is located in Carlisle, Pennsylvania and at one time was a vibrant shopping center servicing Carlisle and the surrounding area. Like many other malls of this vintage, the Mall now stands practically vacant and is losing significant amounts of [Honey daily. One of the only tenants remaining in the Mall is PNC, which has been located therein since the Mall opened in 1965, well before Y-F moved into the Building. Shuman-Carlisle Mall Associates ("Shuman") was the previous owner of the Mall. Sun Life held the mortgage on the Mall and foreclosed on the mortgage. As a result, Sun Life obtained title to the Mall at sheriffs sale on or about March 8, 1995 from Shuman. Currently Zamias and Sun Life are in the process of adding a Super Wal-Mart ("Wal- Mart") to the property, with the anchor tenants remaining. This redevelopment plan requires the demolition of the Mall and construction of the Wal-Mart store. It is anticipated that the Wal- Mart will employ up to 300 people and will have yearly sales in excess of $40,000,000. This, of course, will have a ripple effect on the Carlisle regional economy since the Wal-Mart will reverse the outflow of shoppers from the Carlisle area and actually attract shoppers from other areas. As part of the Wal-Mart revitalization, PNC is slated to establish an office inside the Wal-Mart, once that project is completed. During the demolition of the Mall and construction of the Wal-Mart, estimated to take approximately eight months, PNC needs to be temporarily relocated to another location. Sitting on the Mall property is the Building, that now sits vacant and once housed York Federal, the banking arm of Y-F. It is anticipated that PNC will temporarily move into the vacant Building, rent free, while the Wal-Mart is constructed. Due to the terms of the lease between PNC and Sun Life, if a temporary location cannot be provided, the Wal-Mart will not be built and the Mall will continue to lose money and remain in its current state. Y-F entered into an Agreement of Lease (the "Lease") with Shuman dated July 17, 1989, pursuant to which Y-F leased the now vacant Building on the Mall's property that PNC is to move into. The Lease, in addition to the usual terms and conditions, contained a restrictive covenant that provides: 58.1 LEASE MODIFICATIONS: This Lease is intended to be a land lease, with ownership of the improvements thereon vested in Lessee during the original term of this Lease and during the term or terms of any properly exercised option(s). Upon the expiration of this Lease or the last of any properly exercised option term, whichever comes last, title to said improvements shall vest in Lessor except that Lessor may not sell, lease or rent, said improvements for use as a savings and loan or bank if Lessee at such time occupies a location for use as a banking facility within a five mile radius of the Demised Premises. Such restriction shall terminate at such time as Lessee fails to occupy a location for use as a banking facility within a five mile radius of the Demised Premises, or ten years after the premises are vacated by Lessee, whichever comes first. In the event of Lessee's default this restriction as to subsequent occupancies shall not apply. It is this provision that Y-F now seeks to enforce. The Lease also contained a subordination clause that provides: 44. SUBORDINATION: Lessor and Lessee agree that this Lease shall be and the same hereby is made subject and subordinate at all times to all covenants, restrictions, easements and encumbrances now or hereafter affecting all or any part of the fee title of the Shopping Center and to all ground and underlying leases and mortgages or any other method of financing or refinancing covering the said fee title or any interest therein in any amounts, and all advances thereon, which may now or hereafter be placed against all or any part of the land and/or Buildings and improvements now or hereafter constituting a part of the Shopping Center, and to all renewals, modifications, consolidations, participations, replacements and extensions thereof. The term "mortgages" as used herein shall be deemed to include trust indentures and deeds of trust. The aforesaid provisions shall be self-operative and no further instrument of subordination shall be necessary unless required by any such ground or underlying lessors or mortgagees. Following the sheriffs sale and Sun Life's acquisition of the Mall, Y-F and Sun entered into a Shopping Center Lease Agreement (the "Agreement") dated March 8, 1995 that is specifically separate and distinct from the Lease. Pursuant to the Agreement, the new lease was to be month-to-month and incorporated certain provisions of the Lease provided that the Lease was "in effect as of the date at which ownership of the Mall passed to Landlord at Foreclosure Sale ..." Provided that this condition was met, the Agreement specifically excluded from incorporation any terms of the Lease "relating to the ... subject matters" of "Term, Termination, Renewal or Extension, Option to Renew or Extend". Sun Life subsequently terminated the Agreement with Y-F and Y-F vacated the Building on or about June 13, 1997. The Building has sat vacant since that time. III. STATEMENT OF QUESTION INVOLVED SHOULD AN INJUNCTION BE DENIED WHERE THE MOVING PARTY CANNOT DEMONSTRATE A CLEAR RIGHT TO RELIEF, AN IMMEDIATE HARM, OR AN IRREPARABLE INJURY AND WHERE MORE HARM WOULD RESULT FROM THE ISSUANCE OF AN INJUNCTION? SUGGESTED ANSWER: Yes. IV. LEGAL DISCUSSION In order to obtain injunctive relief, "the plaintiffs right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted." Sovereign Bank v. Hamer, 449 Pa. Super. 578, 590, 674 A.2d 1085, 1091 (1996). Courts also consider whether a "greater injury would result by refusing [an injunction] rather than by granting it." Albee Homes. Inc. v. Caddie Homes Inc., 417 Pa. 177, 181, 207 A.2d 768, 769 (1965). As such, the burden is on the party seeking an injunction to establish both the right to relief and the inequitable nature of the defendant's conduct. Bums v. Baumgardner, 303 Pa. Super. 85, 96, 449 A.2d 590, 595 (1982); Plymouth Woods Corr). v. Maxwell, 407 Pa. 539, 542, 181 A.2d 321, 323 (1962). In the context of restrictive covenants, injunctive relief is considered a "harsh remedy" that will be granted only "when the essential prerequisites are met." Lelii v. Ciccarone, 24 Ches. Co. Rep. 61 (1976) (citing Credit Alliance Co . v. Phila. Minit-Man Car Wash Co ., 450 Pa. 367, 301 A.2d 816 (1973)). In addition, because such covenants place restrictions on the use of land, they are strictly construed against the party seeking to enforce the restriction and courts are reluctant to grant injunctions in this context. Great Atlantic and Pacific Tea Co. Inc. v. Bailey, 421 Pa. 540, 220 A.2d 1 (1966); Plymouth Woods Cori), v. Maxwell, 407 Pa. 539, 181 A.2d 321 (1962). Against this background, and as set forth below, it is clear that Y-F cannot satisfy or demonstrate any, let alone all, of the prerequisites for obtaining injunctive relief. A. Y-F LACKS A CLEAR RIGHT TO RELIEF As outlined below, Y-F does not have a clear right to the relief it has requested. A such, the injunction can not be entered. 1. The restrictive cc-, ena • is not a term of the Agreement and thus is unenforceable. As a preliminary matter, Y-F must prove that the restrictive covenant is a term of the Agreement between it and Sun Life. Since the Lease was not in effect when Sun Life purchased the Mall, did not incorporate the restrictive covenant and the restrictive covenant expired by its own terms, an injunction is inappropriate because the restrictive covenant is not applicable. 6 a. The restrictive covenant was not incorporated into the Agreement because the Lease was not in effect when Sun Life purchased the Mall. The restrictive covenant is contained in the Lease between Y-F and Shuman. Since the Lease contained a subordination clause, the Lease became null and void when Sun Life foreclosed on the Mall and purchased it at sheriffs sale. See Albert J. Grosser v. Rosen, 436 Pa. 311, 259 A.2d 679 (1969); Unity Sav. Assoc. v. American Urban Sciences Foundation Inc., 337 Pa. Super. 470, 487 A.2d 356 (1984). Thus, the restrictive covenant, to be effective, must have been incorporated into the Agreement between Y-F and Sun Life. Here, the Agreement specifically provides that certain terms of the Lease will be incorporated into the Agreement only if the Lease was "in effect as of the date at which ownership of the Mall passed to Landlord [Sun Life] at foreclosure sale." (Agreement, $ 4). As a matter of law, when title passed to Sun Life at the sheriffs sale the Lease became null and void and thus was not in effect as of that date. See Id. Accordingly, the restrictive covenant was not incorporated into the Agreement and is of no effect. b. The restrictive covenant was specifically excluded from incorporation into the Agreement. The Agreement specifically excludes from incorporation, the following "subject matters" of the Lease: Term Termination Renewal or Extension Options to Renew or Extend Since the restrictive covenant deals with the term of the Lease and termination of the Lease, it was not incorporated into the Agreement. The restrictive covenant, in its first sentence, deals with the nature of the Lease during the term of the Lease. The second sentence of the Lease explains what happens if the Lease term expires, i.e. the Lease terminates. More specifically, the restrictive covenant specifically deals with a restriction that is only applicable if the Lease terminates. Likewise, the restrictive covenant is Paragraph 58.1 and follows directly after Paragraph 58 captioned "Options to Renew". To that end, the word term is used four times in the restrictive covenant, the word option is used twice and the term expiration is used once. Thus, the restrictive covenant relates to the subject matters of "term", "termination", "renewal and extension" or "options to renew or extend" in that it sets forth what happens if the Lease terminates and is dependant upon the tern of the Lease and extensions and renewals thereof. As such, the restrictive covenant was not incorporated into the Agreement. C. The restrictive covenant expired by its own terms. By its own terms, the restrictive covenant applies only to the original term and to the term of any properly exercised options. (Lease, ¶ 58.1). The Agreement specifically excluded the Term provision of the Lease, instead establishing a month-to-month term. Thus, since the Agreement did not incorporate the "original term" of the Lease, as the phrase is used in the Lease, the restrictive covenant expired by its own terms and is of no effect. 2. The restrictive covenant, strictly construed, does not apply to the instant situation. Since restrictions on the use of land are generally disfavored in the law, restrictive covenants are strictly construed against the party seeking to enforce the covenant. See Great Atlantic and Pacific Tea Co Inc v Bailey, 421 Pa. 540, 220 A.2d 1 (1966). Additionally, any "ambiguity in a restrictive covenant must be construed against the one to be benefited by the restriction." Id. at 545, 220 A.2d at 3. Accordingly, an injunction is not appropriate where, like here, the restrictive covenant, when strictly construed, does not apply to the proposed land use. Id.; 24 Ches.Co.Rep. at 69. Here, assuming that the restrictive covenant is part of the Agreement, pursuant to the terms of the restrictive covenant, Sun Life "may not sell, lease or rent" the building "for use as a savings and loan or bank". Since Sun Life intends to place PNC into the building temporarily rent free, the issue is whether pursuant to this arrangement Sun Life will "lease or rent" the building to PNC. Webster's New Riverside Dictionary defines the verb "lease" as "To grant occupation or use under the terms of a lease." The noun "lease" is defined as "A contract granting occupation or use of property during a certain period in exchange for a specified rent." The noun "rent" is defined as "Payment, usually of an amount set by contract, made by a tenant at designated intervals in return for the right to occupy or use another's property." Likewise, the verb "rent" is defined as "To obtain occupancy or use of (another's property) in return for periodic payments" Thus, strictly construing the restrictive covenant against Y-F, Sun Life will "lease" or "rent" the building to PNC only if it is paid for use of the building. Since PNC will not be making any payment for the building, the restrictive covenant is not implicated. 3. The characteristics of the property have changed, thus rendering the restrictive covenant inoperable. An injunction should be refused when changes involving the characteristics of the property occur and make it impossible to achieve the result contemplated by the restrictive covenant. Snyder v. Plankenhorn, 398 Pa. 540, 543, 159 A.2d 209, 210 (1960) (noting that "ft]he changed character of the area should stay the hand of equity"); Daniels v. Notor, 389 Pa. 510, 133 A.2d 520 (1957). Because of the continued financial failure of the Mall, the characteristics and nature of the Mall property have changed significantly since the time that the covenant was entered into. As a result of these changes, it has become necessary to demolish the Mall to ensure its future through the construction of the Wal-Mart. Therefore, these dramatic changes to the property make the covenant inoperable, particularly where the enforcement of it would not serve an equitable purpose but would instead serve to destroy a unique opportunity to revitalize both the property and the region. B. SINCE Y-F'S INJURY IF ANY CAN BE COMPENSATED BY MONEY DAMAGES. Y-F LACKS AN IMMEDIATE AND IRREPARABLE INJURY. Assuming that Y-F has established its clear right to relief, it must also prove an immediate and irreparable harm. To make this showing, it is well-settled that the plaintiff must show its loss is not entirely ascertainable and compensable by money damages. New Castle Orthopedics Assoc. v. Burns 481 Pa. 460, 465, 392 A.2d 1383, 1385 (1978); Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corn., 450 Pa. 367, 371, 301 A.2d 816. 818 (1973); Boehm v. Univ. of Penn School of Veterinary Medicine, 392 Pa. Super. 502, 523, 573 A.2d 575, 10 586 (1990); Lelii, 24 Chest. Co. Rep. at 64. In short. Y-F must prove that it cannot be compensated by money damages and that damages, if any, would be difficult to prove. Id. While Y-F has failed to allege any injury in its Complaint, Y-F's damages, if any, are purely economic and thus, Y-F can be provided with a full, complete and adequate remedy at law. Specifically, Y-F's damages, again if any, would be in the form of lost customers and deposits, which an action for damages, if proven, can remedy. Additionally, there is no real likelihood of damages to Y-F in this case. Currently, PNC operates in the Mall and will merely be moving its operations a few feet on the same property. Additionally, PNC has always been in the Mall, even before Y-F occupied the Building and entered into the Lease. Thus, the Lease and the restrictive covenant were entered into with the knowledge and express understanding that PNC would be a competitor at that location. This is not the situation where a new competitor moves into the Building pursuant to a long term lease. PNC is already there, and has always been there, competing against Y-F. Likewise, PNC's occupancy of the Building is only temporary until the completion of the Wal-Mart. C. SINCE IF THE INJUNCTION ISSUES THE WAL-MART DEAL WILL BE JEOPARDIZED. THE BALANCE OF EQUITIES FAVORS THE DENIAL OF THE INJUNCTION. While Y-F lacks a clear right to relief and irreparable injury, perhaps the most compelling reason that the injunction should not issue is that the harm that would result from granting the injunction is greater than any benefit which might accrue if an injunction is granted. In the context of restrictive covenants involving real property, the goal must be to avoid more harm being caused by the issuance of injunctive relief. Bums v. Baumgardner, 303 Pa. Super. 85, 96, 449 A.2d 590,595 (1982); Plymouth Woods Corp. v. Maxwell, 407 Pa. 539, 542, 181 A.2d 321. 323 (1962). The Mall is suffering from serious financial problems and loses money every day. If the Wal-Mart is not constructed the Mall's future is uncertain and the property could end up sitting vacant. The Wal-Mart, however, will revitalize this property and provide a significant economic boast to the Carlisle region. As stated above, this project will provide up to 300 jobs and over $40,000,000 in yearly sales to the region. For the Wal-Mart to proceed, however, PNC must occupy the Building temporarily to allow the Wal-Mart to be constructed in the Mall area where PNC currently operates its banking facility. If PNC cannot relocate into the Building, it is unlikely that the project will proceed because it will be too costly to relocate PNC or buy-out its lease. The economic and social benefits to the community of building the Wal-Mart which, taken together, far outweigh any benefit that may be gained by preventing PNC temporarily occupying the Building due to some unarticulated and highly speculative injury imagined by Y- F. There would be significantly more harm created by granting the injunction and preventing PNC from its temporary occupancy in the Building, which would in turn have the effect of preventing a vital and job producing business from entering the area and revitalizing the Mall property and the surrounding communities. 12 V1. CONCLUSION For all of the foregoing reasons, Y-F's Service Corp.'s request for an injunction must be denied. Respectfully Submitted, RHOADSSf & SINON LLP By: ` t ""??'I' et-`? Timothy J. Nieman Attorney I.D. 66024 Kevin M. Gold Attorney I.D. 70265 One South Market Square P. 0. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Date: October 12, 1999 Zamias Services, Inc. 13 CERTIFICATE OF SERVICE I hereby certify that on this 12`h day of October, 1999 the foregoing Brief of Defendant Zamias Services, Inc, in Opposition to Plaintiffs Complaint to Enjoin Lease was served via first class mail upon the persons listed below: Benjamin F. Riggs, Jr., Esq. Y-F Service Corp. 101 South George Street York, PA 17401 (Attorney for Plaintiff) _ ?'- Dara D. Boozel Y- F SERVICE CORP. VS. Plaintiff No. 99-5309-Civil Term ZAMIAS SERVICES INC. and PNC BANK NATIONAL ASSOCIATION and SUN LIFE INSURANCE COMPANY OF AMERICA Defendants NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the amended complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WI [ERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y- F SERVICE CORP. VS. ZAMIAS SERVICES INC. and PNC BANK NATIONAL ASSOCIATION and SUN LIFE INSURANCE COMPANY OF AMERICA Defendants No. 99-5309-Civil Term AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, Pennsylvania 17013 Plaintiff Telephone: (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y- F SERVICE CORP. Plaintiff VS. No. 99-5309-Civil 'term ZAMIAS SERVICES INC. and PNC BANK NATIONAL ASSOCIATION and SUN LIFE INSURANCE COMPANY OF AMERICA Defendants AMENDED COMPLAINT TO ENJOIN VIOLATION OF LEASE AND NOW, comes Plaintiff Y-F Service Corp., by and through its attorney, Benjamin F. Riggs, Jr., and complains of Defendants Zamias Services Inc., Sun Life Insurance Company of America and PNC Bank National Association, and states as follows: PARTIES The Plaintiff is Y-F Service Corp., a Pennsylvania corporation, with principal offices located at 101 South George Street, York, Pennsylvania 17401 and an affilated company of York Financial Corporation. York Financial Corporation is the bank holding company of York Federal Savings and Loan Assocation. 2. One of the Defendants is Zamias Services Inc., ("Zamias") a Pennsylvania corporation, with principal offices located at 300 Market Street, Johnstown, Pennsylvania 15901. 3. One of the Defendants is PNC Bank Corp. National Association, ("PNC") a Pennsylvania banking corporation, with principal offices located at USX Tower, 600 Grant Street, Pittsburgh, Pennsylvania 15219. 4. One of the Defendants is Sun Life Insurance Company of America, a California corporation with principal offices located at I Sun-America Center, Century City, Los Angeles, California 90067-6022. LEASE 5. On or about March 8, 1995, Y-F Service Corp. and Sun Life Insurance Company of America, ("Sun Life") entered into a Shopping Center Lease Agreement, ("Agreement') which modified a lease dated July 17, 1989, by and between Shuman-Carlisle Mall Associates "(Shuman") and Y-F Service Corp ("Lease"). True and correct copies of the Agreement and Lease are attached hereto, made a part hereof, incorporated herein by reference and marked Exhibits A and B, respectively. The Lease dealt with an outparcel in the MJ Carlisle Mall containing a York Federal bank branch ("Property"). Sun Life, lender to Shuman, foreclosed on Shuman and obtained title to the Property in question through a Sheriffs Sale. The Agreement between Sun Life and Y-F Service Corp. amended the Lease relating to the term, termination, renewal or extension, and options to renew or extend. The Agreement incorporated all of the remaining terms of the Lease. 6. The pertinent part of the Lease which was incorporated into the Agreement contained Paragraph 58.1 which states as follows: " .. Lessor may not sell, lease or rent, said improvements for use as a savings and loan or bank if Lessee at such time occupies a location for use as a banking facility within a five mile radius of the Demised Premises. Such restriction shall terminate at such time as Lessee fails to occupy a location for use as a banking facility within a five mile radius of the Demised Premises, or ten years after the premises are vacated by Lessee, whichever comes first." 7. Zamias, agent and property manager for Sun Life, has informed Y-F Service Corp. that it intends to allow PNC to occupy the Property. 8. Zamias and Sun Life are in violation of the terms of Paragraph 58.1 of the Lease as that paragraph dealt with the prohibition of other banks or savings and loans using the Property if York Federal had a banking facility within a five mile radius and ten years has not passed since the Agreement terminated. (Termination date - May 31, 1997) 9. Y-F Service Corp. is informed, believes and avers that Zamias and Sun Life have every intention of leasing the Property to PNC in violation of the spirit of the lease contained in Paragraph 58.1. 10. The Plaintiff Y-F Service Corp. avers that the acts of the Defendants constitute a violation of the Lease terns and will result in manifest and irreparable damage to Y-F Service Corp. WHEREFORE, Plaintiff Y-F Service Corp. is in need of equitable relief and asks this Honorable Court to (a) issue an injunction, preliminary until hearing, and perpetual thereafter, enjoining and restraining the Defendants Zamias Services Inc., and Sun Life Insurance Company of America, its servants and agents, from allowing Defendant PNC Bank Corp. to use the property; (b) and such other and further relief as the equities of the case may require and that this Court may deem proper. L -0 L-J Benjamin U. Riggs, Jr Attorney for Plaintif Y- F Service Corp. 101 South George Street York, PA 17401 Telephone: (717) 849-2748 Attorney I.D. No. 72030 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PFNNSYL.VANIA Y- F SERVICE CORP. VS. Plaintiff No. 99-5309-Civil Term ZAMIAS SERVICES INC. and PNC BANK NATIONAL ASSOCIATION and SUN LIFE INSURANCE COMPANY OF AMERICA Defendants CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Plaintiffs Amended Complaint was served upon the following persons on this date of depositing copies of same in the United States mail, postage prepaid, addressed as lollows: Dino A. Ross, Esquire Reed, Smith, Shaw & McClay, LLP 213 Market Street 9a' Floor P.O. Box 11844 Harrisburg, PA 17108 Attorney for PNC Bank National Association Timothy J. Nieman, Esquire Rhoads & Sinon, LLP Dauphin Bank Building 12°i Floor One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Zamias Services, Inc. and Sun Lil'e Insurance Company of America I certify that under penalty of perjury that the foregoing is true and correct. Benjamin F. Riggs, Jr., Esquire Attorney for the Plaintiff Y-F Service Corp. 101 S. George Street York. PA 17401 (717) 849-2748 Date: I013h 1 _i ' i. ;. - .? C? r_ ".i _ c: `, ? ? ? ?: i . Y- F SERVICE CORP. Plaintiff VS. No. 4q• 5309 L'ili `iJ,- ZAMIAS SERVICES INC. and PNC BANK Defendants NOTICI You have been sued in court. If you wish to defend against the claims set lbrilt in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that it* you fail to do so, the case may proceed without you and a judgment may he entered against you by the court without further notice for any money claimed in the complaint or for tiny other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYFIt AI' ONCF, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONF, OO '11) (M '1'1:1,114IONI: '1111: OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN O VI I.F.(iAl. I1FIT. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone: (717) 24')-3166 sr . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 4. Y- F SERVICE CORP. Plaintiff VS. • No. ZAMIAS SERVICES INC. and PNC BANK Defendants AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de ]as quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA .? Y- F SERVICE CORP. vs. Plaintiff No. 29 - 5309L" T,.._ ZAMIAS SERVICES INC. and PNC BANK Defendants COMPLAINT TO ENJOIN VIOLATION OF LEASE AND NOW, comes Plaintiff Y-F Service Corp., by and through its attorney, Benjamin F. Riggs, Jr., and complains of Defendants Zamias Services Inc. and PNC Bank, and states as follows: PARTIES 1. The Plaintiff is Y-F Service Corp., a Pennsylvania corporation, with principal offices located at 101 South George Street, York, Pennsylvania 17401 and an affilated company of York Financial Corporation. York Financial Corporation is the bank holding company of York Federal Savings and Loan Assocation. 2. One of the Defendants is Zamias Services Inc., ("Zamias") a Pennsylvania corporation, with principal offices located at 300 Market Street, Johnstown, Pennsylvania 15901. 3. One of the Defendants is PNC Bank Corp., ("PNC") a Pennsylvania banking corporation, with principal offices located at USX Tower, 600 Grant Street, Pittsburgh, Pennsylvania 15219. LEASE 4. On or about March 8, 1995, Y-F Service Corp. and Sun Life Insurance Company of America, ("Sun Life") entered into a Shopping Center Lease Agreement, ("Agreement") which modified a lease dated July 17, 1989, by and between Shuman-Carlisle Mall Associates "(Shuman") and Y-F Service Corp ("Lease"). True and correct copies of the Agreement and Lease are attached hereto, made a part hereof, incorporated herein by reference and marked Exhibits A and l3, respectively. The Lease dealt with an outparcel in the MJ Carlisle Mall containing a York Federal bank branch ("Property"). Sun Life, lender to Shuman, foreclosed on Shuman and obtained title to the Property in question through a Sheriffs Sale. The Agreement between Sun Life and Y-F Service Corp. amended the Lease relating to the term, termination, renewal or extension, and options to renew or extend. The Agreement incorporated all of the remaining terms of the Lease. 5. The pertinent part of the Lease which was incorporated into the Agreement contained Paragraph 58.1 which states as follows: .. Lessor may not sell, lease or rent, said improvements for use as a savings and loan or bank if Lessee at such time occupies a location for use as a banking facility within a five mile radius of the Demised Premises. Such restriction shall terminate at such time as Lessee fails to occupy a location for use as a banking facility within a five mile radius of the Demised Premises, or ten years after the premises are vacated by Lessee, whichever comes first." 6. Zamias has informed Y-F Service Corp. that it intends to allow PNC to occupy the Property. 7. Zamias is in violation of the terms of Paragraph 58.1 of the Lease as that paragraph dealt with the prohibition of other banks or savings and loans using the Property if • York Federal had a banking facility within a five mile radius and ten years has not passed since the Agreement terminated. (Termination date - May 31, 1997) 8. Y-F Service Corp. is informed, believes and avers that Zamias has every intention of leasing the Property to PNC in violation of the spirit of the lease contained in Paragraph 58.1. 9. The Plaintiff Y-F Service Corp. avers that the acts of the Defendants constitute a violation of the Lease tems and will result in manifest and irreparable damage to Y-F Service Corp. WHEREFORE, Plaintiff Y-F Service Corp. is in need of equitable relief and asks this Honorable Court to (a) issue an injunction, preliminary until hearing, and perpetual thereafter, enjoining and restraining the Defendant Zamias Services Inc., its servants and agents, from allowing Defendant PNC Bank Corp. to use the property; (b) and such other and further relief as the equities of the case may require and that this Court may deem proper. 1-'? L./I Benjamin F. iggs, Jr. Attorney for Plaintiff Y- F Service Corp. 101 South George Street York, PA 17401 Telephone: (717) 849-2748 Attorney I.D. No. 72030 SHOPPING CENTER LEASE AGREEMENT This Lease is ode and entered into this , /N day of rvn-k _, 19_K, by and between SUN LIFE INSU ARar1CE COMPANY OF AMERICA, its successors and assigns ("Landlord") and NAME Y-F Service Corporation ADDRESS 101 South George Street P.O. Box 15068 York, PA 17405-7068 " (hereinafter referred to as "Tenant"). 1. Letting. In consideration of the rents agreed to be paid and of the covenants and agreements made by the respective parties hereto, Landlord hereby demises and leases to Tenant, and Tenant hereby leases from Landlord, that portion of the property known as the °M.J. Carlisle Mall," Carlisle, Pennsylvania (th-- "Mall"), occupied by Tenant as of the date hereof. 2. Term. The term of this Lease shall be one month, thereafter month-to-month unless earlier terminated in accordance herewith. 3. Termination in the Absence of Default. Either Landlord or Tenant may terminate this Lease on not less than 30 days' notice. Any such notice shall be effective as of the end of the calendar month in which notice is given (the "Termination Date"). On or before the Termination Date, Tenant must surrender possession of the Premises to Landlord. Rent shall be payable through the Termination Date. Nothing herein shall limit either partyfs rights and remedies in the event of default. 4. Incorporation by Reference. The-parties acknowledge that prior to the date hereof, certain tenants of the Mall were parties to written lease agreements with Shuman Carlisle Mall Associates, L.P., prior owner of the Mall. To the extent, and only to the extent, that the party seeking to enforce said lease can demonstrate (i) the existence of such a written lease, in effect as of the date at which ownership of the Mall passed to Landlord at foreclosure sale, and (ii) in the event of an attempt to enforce said lease by Tenant, that Tenant was not in material default of said lease on such date, then the terms of said lease (the "Prior Lease"), with the exceptions noted hereinbelow in this Section 4, are incorporated herein by reference. Any and all Prior Lease shall remain in effect to by law. Anything to the co notwithstanding, any parts of the following subject matters shall form Term Termination Renewal or Extension options to Renew or Extend collateral guaranties of the the fullest extent permitted ntrary in this Section 4 Prior Lease relating to the no part of this Lease: 5. New Agreement. Anything in the preceding Section-to the contrary notwithstanding, this Lease is a new and independent agreement, and is not intended, nor shall it be construed, as a renewal, amendment or modification of any other or earlier lease agreement among either party or their respective privies. 6. Termination by Landlord in the Event of Default. In the event that Tenant is in default of any material term of this Lease, and in the event that Tenant fails to cure such default upon ten days' notice thereof from Landlord (delivery to Tenant at Tenant's location at the Mall shall be deemed proper notice), Landlord shall have, at the conclusion of such ten day period, a right to immediate possession of the demised premises. IN WITNESS WHEREOF, the parties have executed and delivered this Lease as of the day and year first written above. LANDLORD: TENANT: SUN LIFE INSURANCE CCMPANY Y_F Service Corporation OF AMERICA / By: ' J Title: Title: ATTEST: ATTEST: Title: Title: J -Sec re,4tl- I/ $SIMAN-L`ANi ISLE ATL QQrAT C A New Jersey Limited Partnership, as LESSOR ADA A Pennsylvania Corporation, as L E ARTICL 1. TABLE OF CONT NT^- E Demise of Premises 1 2. Term 1 3. Fixed Minimum Rent 1 4. Failure to Do Business 2 5. Delivery of Possession 2 6. Use of Premises 2 7. Percentage Rent 3 8. Definition of Gross Sales 3 9. Lessee's Records 4 10. Lessee's Reports 4 11. Audits 5 12. Additional Rent 5 13. Past Due Rents 5 14. Place of Payments and Statements 6 15. Security Deposit 6 16. Financing 7 17. Lessee's Work 7 18. Lessor's Work 8 19. Lessee's Improvements and 8 Installations 20. Condition of Premises 8 21. Operation of Business 9 22. Laws, waste or Nuisance 10 23. Competition 10 24. Concessionaire and Licensees 11 25. Signs, Awnings and Canopies 11 26. Assignment, Subletting, Etc. 12 27. Repairs, Maintenance and 13 Alterations 28. Lessee's Failure to Repair 13 29. Covenant Against Liens 13 30. Utilities and Equipment 13 31. Taxes 14 32. Common Areas 16 33. Common Area Maintenance Charge 17 1 s 34. Indemnity 19 35. Insurance 20 36. Insureds, Waiver, Notice 21 37. Increase in Insurance Premiums 21 38. Destruction 22 39. Condemnation 23 40. Lessee's Default 25 41, Lessee'. Normal Percentage Share 27 42, Access to Premises 20 43, Excavation 28 44. Subordination 28 45. Estoppel Certificate 29 46. Attornment 29 47. Attorney-In-Fact 29 48. Quiet Enjoyment 29 49. Merchants Association 30 50. Force Majeure 30 51, Surrender of Premises 30 52. Holding Over 30 53. No Waiver 31 54. Notices 31 55. Recording 31 56. Partial Invalidity 31 57. Broker's Commissions 31 58. Options to Renew 32 58.1 Lease Modifications 33 59 Provisions Binding 34 60 Entire Agreement, Etc. 34 61 Waiver of Liability 35 62 Rules and Regulation. 35 63 EXHIBITS Corporate Lessee 37 A Shopping Center a Demised Premises C Shopping Mall a TTHI§? LEASE, dated the 7 day of 'Z. xX_, 1949, by and between Shuman-Carlisle Mall Associates, A New Jersey Limited Partnership having an address c/o Don Shuman, 130 Main Street, Fleminggton New Jersey (Lessor) and Y-F Service Corp., a Pennsylvania corporation having an address of 101 South George Street, York, Pennsylvania 17405 N I T N I A a A T III 1. DEMISE OF PREMISES. Lessor hereby demises and leases to the Leeeee end the Lessee hereby hires and taken from the Lessor for the term and upon the rentals specified in this Lease the premises (the Demised Premises) described as followst A certain ewes premises in a Shopping Center known as M. J. Carlisle Mall end located near the intersection of Interstate 81 and Hanover Street in the City of Carlisle, County of Cumberland and Commonwealth of Pennsylvania on land more particularly described in Exhibit A. The Demised Premises consists of 21,875 square feet and are outlined in red on Exhibit S. Exhibit B also sets forth the general layout of the Shopping Center, but shall not be deemed a representation, warranty or agreement on the part of Lessor that the Shopping Center or any other of its present occupants will be or will continue to be as indicated on Exhibit B. Lessor reserves the right (1) to increase, reduce or change the number, size, height, layout or locations of the buildings, walks, parking and/or other common areas in any manner whatsoever as Lessor may from time to time deem proper provided Lessor shall at all times provide adequate means of ingress and agrees to the Shopping Center and to the Demfeed Premises; (2) to make alterations or additions to and to build additional storage on the buildings; and (3) to enlarge the Shopping Center by including additional land and building. Lessee's right to use and occupy the Demised Premises during the term hereof shall include the use, in common with others, to the common areas as hereinafter defined and more fully set forth. 2. TERM. The term of this Lease shall be five (5) years. 3. FIXED MINIMOM RENT. (a) Lessee agrees to pa to Lessor, without any prior demand and without any deduction, setoff or abatement whatsoever, except as may be otherwise expressly set forth in this Lease, the Fixed Minimum Rent set forth in subparagraph (c). p •M-- _ ibb __ ______ __ (b) The Fixed Minimum Rent as increased and as adjusted as provided in this Lease shall be payable by Lessee in equal monthly installments on or before the first day of each calenim month in advance, commencing November 1, If Leneor, in its Bole discretion, permits Lessee to occupy the Demised Premises prior to the Commencement Date, such occupancy shall be subject to all the terms of this Lease and said early possession will not advance the Termination Date; if the Commencement Date occurs on a day other than the first day of the month, the monthly installment of Fixed Minimum rent is to be prorated and paid on the Commencement Date. SCHA Lease - Page 1 (c) The Fixed Minimum Rent for the Demised Premises during the term of this Lease shall be ninety- seven thousand, five hundred dollars ($97,500.00) payable in consecutive monthly installments of sixteen hundred twenty-five dollars ($1,625.00) payable on the first day of each and every month beginning on the Commencement Date. Demised Premises are untenantable by reason of e, ceualty or ceases beyond Lessee's control not r Ling from the negligent acts, tortioue acts or o lions to act of Lessee, its servants agent employees, invitees, licensees and concessionair and subtenants if Lessee (a) fails to take posses n and to open for business fully fixtured, etoc and staffed within 10 days after the Commenceme Date or, (b) vacates, abandons or deserts the ised Promisee or (c) ceases operating its store, esor shall have, in addition to all other remedies ovided in this Lease, the right to collect not gAry the Fixed Minimum Rent, but also additional nt equal to twice the daily Fixed Minimum Rent fop-each and every day the Lessee fails to do burin ; and such additional rental shall be deemed to be in lieu of any Percentage Rent that might have been 5. DELIVERY OF POSSESSION$ (a) Lessor shall deliver possession of the Demleed Premises to Lessee on the Commencement Date. possession of the Demised Premises on the Comma nt Date for any reason beyond Lessor's control, ud Sng but not limited to any tenant or tenants ng over, then the rent, herein reserved end nanted to be paid, shall not commence until pot ion of the Demised Premises is given or is avails , and Lessee agrees to accept such allowance abatement of rent, as liquidated damages, in 1 satisfaction for the failure of Lessor to dolly ossession of said Demised Premises on the said da , and to the exclusion of all claims and rights wh Leeeee might otherwise have by reason of possess of said entire premises not being given on the said date, and no such failure to give possession 6. USE OF PREMISESS Lessee agrees to use the Demised Promisee solely for the purpose of conducting the business of operation of a banking facility. Lessee agrees not to use or permit or suffer the use of the Demised Premises for any other business or purpose. Lessee agrees during the term of this lease to conduct Lessee's business in the Demised Premises under Lessee's Trade Name. SCMA Lease - Page 2 payment of the Fixed Minimum Rent, Lessee shall Lessor during each Lease Year during the term o Lease as annual Percentage Rents The Percentage Rent shall be payable at t office of the Lessor or such other place as Lessor ay designate, without any prior demand therefore an without any deductions, setoff or abatement wh tsoever. The Percentage Rent shall be paid in mont ly Installments computed on all gross sales during as monthly period of the term hereof in excess of o -twelfth of the annual Minimum Grose Sales. Such m thly installments shall be payable within fifteen 5) days after the expiration of each month of each L see Year. If the total of the monthly installments of Percentage Rentals for any Lease Year does not aqua the annual Percentage Rentals computed on the total am at of gross sales for such Lease Year, then Lessee, a the time it submits the annual statement of gross a as required under this Lease shall pay Lessor any d iclency or Lessor shall credit any overpayments to the next installment of Percentage Rent due from Lee as as the case may be. In no event, however, shall t e rents to be paid by Lessee and retained by Leeeor fo any Lease Year be less than the Fixed Minimum Rent. he term Lease Year as used in thin Lease shall be def ed to mean a period of twelve (12) consecutive cale or months beginning with the first day of the month oincident with the Commencement Date or within which th Commencement Date falls. 8. "r "o "I The phrase, the "Grosss of mean sold and the charges r ell services performed by•Lessee or otherwise from a business conducted on, in, at or from the Demised Pre see, whether made for cash, by check, on credit or of erwiseI without reserve or deduction or inability or f ilure to collect for the same, including but not limit to, such sales and services (i) where the orders herefor originate at and are accepted by Lessee in he Demised Premises, but delivery or performance thereof is made from or at any other place; ( i) pursuant to mail, telegraph, telephone or othe similar order received or billed at or from the De load Premises; (iii) by means of mechanical or other v ding devices; and (b) all moneys or other things f value received by Looses from its operas no which are neither included in nor excluded from Grose Sales by the other provisions of this defln tion. (c) "Gross Sales" shall not includes (i) the exchange of merchandise between stores of Lee ea where ouch exchanges are made solely for the :o enient operation of Lessee's business; cr (ii) r urns to shippers or manufacturers; or (111) sales of xtures after use thereof; or (iv) cash or credit SCMA Lease - Page 3 returned by the purchaser end accepted by Lessee) Iv) the amount of any city, county, state or fede 1 allas, luxury or excise tax on such sales, whic Is andh 1 od paid tto Price or the in, provided, however, that no franchise or capital L stock tax and no income or similar tax based , d ncome profits or Grose Sales ee such, shall be d e d upon uct from Grose Sales in any event whatsoever. (d) Each er a or sale upon installment or credit shall be tre ted ee a sale for the full price in the month during ich such charge or sale shall be made, irreepactiva f the time when Lessee shall receive payment therefore. 9• LESSEE?R RarnR?a1 Leeeee a 11 prepare and keep, for a period of not lose than t a following the end of each Lease Year, eqe ua (te3) books years, and records Including but not limits to inventories purchases end other transacteeeee a shell record , and re'/a e, nd all seise et the time of sam seise or other ereneactione, whe[dit, in a sealed cash register ing a cumulative total. Lessee at least three (3) years followand each Leese Year all , Pertinent ords , which records shell include, s ? (c) s(b) telephone orderntransactions wisheets of licensees nceeeioneiree and returned Jby cuetomthat merchandise ouch cuetomers? (e) receipts or otndise taken out on approval; (f) ords which would normally be examino be kept by an independent accounccepted auditing standards in perfLosses's Grose Sales and (g) all ireturns. Leee10. 8 Lessee shall submit to e the P da the end of eah during the t erm yOfolthis Lease (including day of the month following or on 7Ge the end oerm) a written statement signed by Leeeee (or e is a corporation by an officer) and certified o be true and correct, showing the Z o e Sales during the preceding 8068 Shall submit to Lessor on or before the ay following the end o£ each lease year a written nt signed by Leeeee and certid by it to be nd correct showing the amount of Gross Sales the preceding lease year. The etntemente d to herein shall be in such form and style and Such details end breakdowns as Leeeor may bly request. The acceptance by Leeeor of e of Percentage Rent or reports thereon shall be prejudice end Shall not constitute a waiver essor's right to examine Lessees booke and of its Grose sales and inventories of SCMA Lease - Page 4 notice to Lessee, Lessor shall have the right to caul a complete audit to be made of all business a ire involving Gross Sales conducted at, upon or f the Demised Promisee by Lessee (and all cones onairea, licensees or subtenants of Leanne, ae may permitted under the terms of this lease) and of books and records pertaining thereto, including t e specified in Articles B, 9 and 10 hereof, and L see will make all such books end records available, cause the same to be made available, for such ex nation at the Demised Premises. If the results of h audit shall show that Lessee's statement of Grose as for any Lease Year has been understated by three 31) percent or more, then Lessee agrees to pay to Door the cost of such audit in addition to any de lency payment required. The furnishing by Leese of any grossly inaccurate statement shall constitute n Event of Default. Any information obtained by Le or as a result of such audit shall be held in at t confidence by Lessor, except in any action or roceeding to recover such deficiency or the cost of ch audit, or in connection with any existing financin or any prospective sale, lease or leaseback or financ g of all or any part of the Shopping Center or any interest therein, or in connection with any r titration or filing with any governmental authority 12. ADDITIONAL RFNTt In addition to the Fixed Minimum Rent and Percentage Rent, all other payments to be made by Lessee to Lessor hereunder shall be deemed for the purpose of securing the collection thereof, to be Additional Rent hereunder and shall be due and payable on installment of em Fixed or Mitogether with the next nimum Rent, whichever shall efirst occur; Lessor shall have the same rights and remedies upon Lessee's failure to pay Additional Rent an for the nonpayment of the Fixed Minimum Rent. Lessor, at its election, shall have the right (but not the obligation) to pay for or perform any act which requires the expenditure of any sums of money by reason of the failure or neglect of Lessee to perform any of the provisions of this Lease within the grace period, if any, applicable thereto, and if Lessor shall, at its election, pay such sums or perform such acts requiring the expenditures of monies, Lessee agrees to reimburse and pay Leeeor, upon demand, all such sums, which shall be deemed to be additional rent hereunder and be payable by Lessee as such. 13. PAST DUE RENTS, (a) If Lessee shall fall to pay any rents or other charges characterized herein as Additional Rent when the payment was due and in addition to all other remedies under this Lease, such unpaid amounts shall bear interest from the due date thereof to the date of payment at the highest legal rate of interest chargeable in the State of Pennsylvania, or twenty-four (24%) percent per annum, whichever is lower. (b) If any payment of Fixed Minimum Rent -or. 41?--Rewt due from Lessee to Lessor is not paid on or before the fifth day following the date on which the SCMA Lease - Page 5 payment was due, then Lessee shall pay to Lessor without notice or demand and in addition to all other remedies under this Lease, a late charge of ten (10%) percent of the payment for each month or part thereof for which payment is late. 14. PLACE OP PAYM em wn amam¢ 0=1 All eyments required to be paid by Lessee to Lessor shell made payable to the order of Lessor or its designee and d all such payments and all statements and reports required to be rendered by Lessee to Lessor shall be delivered to Lessor, moiling address, or at such other place as Lessor may from time to time designate in writing, without the necessity of any prior demand for the same. 15. SECU41T_ y DEPOT i (a) Lessee has deposited with Leeeor a Security Deposit of _D_ of the by check subject to collection, iehichereby withoutedliability i fordepointeressit ty for the full and faithful performance by Lasses of each and e part of Lessee very term, covenant and condition of this Lease on the security deposit t shall be not be edmoand rtgaged, Performed. Such transferred or encumbered by Lessee without the written consent of Lessor and any such act on the part of Lessee shall be without force and effect and shall not be binding upon Lessor. (b) If any of the rents or any other sum payable by Lessee to Lessor shall be overdue and unpaid or if Lessor makes payments o any of the n behalf of Lessee, or if Lessee fails to perform option, and twithout prejudice to then other rremmay, edy awhich Lessor may have, appropriate and apply said entire deposit or so much thereof as may be necessary to compensate Lessor toward the payment of the rents or other sums due from Lessee, or for any lose, damage or expense sustained by Lessor resulting from such default; and in each event Lea see shall forthwith upon demand restore said security to the original num deposited. If Lessee shall fully and faithfully comply with all of the terms, covenants and conditions of this Lease and promptly pay all of the rentals as they fall due and all other sums payable by Lessee to Lessor, said deposit shall be returned in full to Lessee following the date of the expiration of the term hereof and the surrender of the Demised Premises by Lessee in compliance with the provisions of this Lease. (c) If any bankruptcy, insolvency, reorganization or other creditor/debtor proceedings shall be instituted by or against Lessee, or its successors or assigns, or any guarantor of Lessee hereunder, such security doposit shall be deemed to be applied first to the payment of any rents and/or other charges due Lessor for all periods prior to the institution of such proceedings and the balance, if any, of such security deposit may be retained by Lessor in partial liquidation of Lessor's damages. (d) Lessor may deliver the security deposited by Lessee hereunder to the purchaser of Lessor's interest in the Demised Premises if such interest is sold or transferred and thereupon Lessor shall be discharged and released from SCMA Lease - Page 6 all further liability with respect to such deposit or the return thereof to Lessee, and Lessee agrees to look solely to the new lessor for the return of said security deposit, and this provision shall also apply to any subsequent transferees. No holder of a mortgage or deed of trust or lessor under a ground or underlying lease to which this Lease is or may be subordinate shall be responsible in connection with the security deposited hereunder, unless such mortgagee or holder of such deed of trust shall have actually received the security deposited hereunder. 16. PINANCINGi If a lender with which Lessor has negotiated or may negotiate interim or long term financing (including, without limitation, in the form of a sale-leaseback, or mortgage transaction) shall require or request a change or changes in thin Lease and if within thirty (30) days after notice from Lessor, Lessee fails or refuses to execute an amendment or amendments to this Lease incorporating the change or changes which Lessor certifies are required by such lender to secure such lender's approval of this Lease, then Lessor may give Lessee ten (10) days' notice of its intention to terminate this Lease and at the expiration of the ten (10)-day period this Lease shall automatically be null and void and of no further force and effect, and any money or security deposited hereunder :hall be returned to Lessee and thereafter neither party shall have any further liability to the other, either for damages or otherwise, by reason of such cancellation as though this Lease had not been executed in the first instance. In no event, however, may any such change or changes modify the Fixed Minimum Rent or other rents and charges payable by Lessee hereunder, the Permitted Uses, the term of this Lease or the size or location of the Demised Premises. submit to Leeeor, forapproval, within ten (10) d after the execution and delivery of this Lease by L or to Lessee, two (2) sets of complete architectur and engineering plane and specifications for the Demised Premises, prepared by architects and engines licensed in the State of Pennsylvania, describing work which under this Lease is to be performed by essee. Such plans and specifications shall show in ufficient detail the locations of all utilities and rtitions the store front and any other matters w ch may affect the construction work to be perfo ed by Lessee in the Demised Premises. In the ent Lessee's plane and specifications, in the e e judgment of Lessor or Lessor's architect or engineer, are incomplete, inadequate or inconsis t with the terms of this Lease and/or do not confo o the standards of design, motif, decor and qualit established or adopted by Lessor, and/or would t d to create an imbalance with or be incompatible th adjoining premises, and/or would provide for require any installation or work which is or might a unlawful or create an unsound or dangerous conditio or adversely affect the structural soundness of th Demised Premises and/or interfere with or abridge the use and enjoyment of any adjoining apace in the S-__ping Center, Lessor may deny approval of Lessee's SCMA Lease - Page 7 to submit revised and/or corrected plena nd specifications to Lessor remedying the Objections plane (b) Followin Lessor's Lesseeeagree 1 o employ ,a contractor and subcontractors, sstis tory to Lessor, to perform Lessee's work In accord ce with the said approved plane and specifications llowing the delivery of possession of the Demised Pre ea to Lessee. (c) Lessee a ee to perform and cause Lessee's contractor d subcontractors to perform Leeeee's work in a m er so as not to damage, delay or interfere with th roeecution or completion of any work being performs by Lessor or its contractors in the Demised Preml or in or about any other portion of the Shopping nter or in any other way interfere with the activity of the Shopping Center and to provide Lessor with ritten verification of workmen's compensation insu,v nce coverage, performance bonds, casualty and 1 ility insurance coverage in amounts eetlefactory to 18. LESSOR'S WORE, NONE 19. LESSEE'S IMPROVRMRNTC awp INamalrem n a Lessee shall fully equip the Demised Premises with , all trade fixtures and equipment, lighting fixtures, furniture, furnishings, and floor coverings, and any other fixtures and equipment necessary for the proper operation of Lessee's business. Lessee shall not assign, lien, encumber, chattel mortgage or create a security interest in end to or upon any of the foregoing or other personal property attached or affixed to the walla, ceiling, floors or pipes in the Demised Premises without Lessee's first obtaining in each and every instance the prior written consent of Lessor. 20. CONDITION OF PREMI Ect Lessee has examined and knows the condition of the Demised Premises and the appurtenances thereto and has received the same in their existing condition and state of repair without any representation by or on behalf of Lessor. SCMA Lease - Page 8 21. QPERATION OF g1a INE a1 Lessee agrees except as herein otherwise provided, (a) to continuously and uninterruptedly occupy and use the entire Demised Premises for the Permitted Uses, and to conduct Lessee's business therein in a reputable manner; (b) to remain open for business during all such days, nights and hours as may be designated by Lessor from time to time on ten (10) days' prior written notice to Lessee, but in no event shall Lessee be obligated to open for business prior to 10100 AM or close after 4100 PM on Mondays t on Saturdays of hrough Fridays or before 10100 AM and after 12100 noon each e acknowledges, consents and agrees and that Lessee any and/or all services, facilities and access by the public to the Demised Premises and/or to the Shopping Center may be suspended in whole or in part on legal holidays, on such other days as may be declared by local, state, or federal authorities as days of observance, or during any periods of actual or threatened civil commotion, insurrection or other circumstances beyond Lessor's control, when Lessor, suspension Lof such essor's reasonable judgment, shall deem the necessary for the protection and/or itpreservationcb of persons end/or property; store with sufficient employees le business and carry sufficient mal merchandise oY such siz °£ eeeeonal accomplish the 'acter and quality to permit to keep the diepley windows and _ t gne, if any, in an orderly and attractive and Lessees to keep thereon end the exterior and interior portions of all windows, doors and all other plate glass in a neat, clean, sanitary and safe condition; g.)? store or stock In the Demised P e La&M4 8= wares and m F o ae lieseee 1te.,_e to ' ., offer for (g)+to apply for, secure, maintain and comply with all licensee or permits which may be required for the conduct by Lessee of the business permitted to be conducted in the Demised Promisee and to pay, if, as and when due all license and permit fees and charges of a similar nature in connection therewith; (h) if the Demised Premises contains a mezzanine, to restrictforhmezzaninerepeceorlofany, to usbrfor only; or other noneelling purposes only such a as is reasonably required for the conduct of eee'e business in the Demised Premises, and of Ylce or other noneelling space shall n e used to perform any functions for any oth ore or business conducted by Lessee or by an er person or firm; (j) neither to solicit buss nor to distribute advertising matter in the par or other common areas; (k) not to place any we upon the floor which shall exceed the permitted name of the( businessooperatedtin thedDemiseddvPremises without Lessor's prior written consent;wsaaa.?ypp insignia or other identifying mark of a•.-s; ping Center designated by Lessor advertising, whetha? ea ny, in Lessee's SCMA Lease - Page 9 or fictitious) or any fi sale; (o) to participate that may be established b of the other retail s Shopping Center or in the Lessor's prior written co, suffer, permit, instal]]].. Premises any coin-clorbte, toilets, ec machines for itious going out n any window ales Lessor for ello ran and bmdne? uildlaor-and (p) except with a n n each ch instance, not to or operate in the Demised vending machine or similar or of goods, wares, merchandise, ing, but not limited to, pay ales, amusement devices and the sale of beverages, food, 22. LAWS WASTE OR NUISAwCR, (a) Lessee agrees, at Lessee's own coat and expenses (i) to comply with the Certificate or occupancy issued for the Demised Premises and to comply with all present and future governmental laws, ordinances, orders and regulations affecting the Demised Premises or the use thereof; and (ii) to comply with all present and future rules and regulations of the Board of Fire Underwriters, Lessor's insurance carriers and other organizations establishing insurance rates; but the foregoing shall not be construed to require Lessee to comply with any such laws, ordinances, rules or regulations which require structural changes in the Demised Premises or the Building unless the same are made necessary by any act or work performed by Lessee or by the nature of Lessee's business or by the manner of Lessee's use of the Demised Premises. (b) Lessee further agrees not to suffer, permit or commit any waste, nor to allow, suffer or permit any adore, vapors, steam, water, vibrational noises or other undersirable effects to emanate from the Demised Premises or any equipment or installation therein into other portions of the Building, or otherwise to allow, suffer or permit the Demised Premises or any use thereof to constitute a nuisance or unreasonably to interfere with the safety, comfort, or enjoyment of the Shopping Center by Lessor or any other occupants of the Shpping Center or their customers, invitees or any others lawfully in or upon the Shopping Center. Upon written notice by Lessor to Lessee that any of the aforesaid is occurring, Lessee agrees forthwith to cease and discontinue the same and within ten (10) days thereafter to make such changes in the Demised Premises and/or install or remove such apparatus or equipment therein or therefrom as may be required by Lessor for the purpose of obviating any such condition. after the Commencement Date of this Lease and d and throughout the term hereof, Lessee (end esee is a coproration, any parent, sub y or affiliated company of Lessee) will cquire, open or operate, directly or indire , within a radius of two (2) miles from the o e boundary of the Shopping Center, any addLtIonsr _ stores (rot so owned or operated as of the SCNA Lease - Page 10 r conducted by Lessee in the Demised Premises. he event of a breach of the foregoing covenan essor, in addition to any other remedy avalleb o Leeeor, may require that the Grose Sales f ny such other store be included in the cost on of the percentage rent hereunder, as thou d sales had actually been made from the Demi remisee. If Lessor so elects, all of the prow a of Articles 9, 10 and 11 hereof shall be ap a to ell the books and records pertaining to not without the prior written consent of Lessor, w h consent may be withheld by Lessor for any or no eon, grant any concessions or licensee for the op tlon in the Demised Promisee of one or more depart a of the business permitted to be conducted by Lee pursuant to the provisions of Article 6 hereof; p ided, however, that if Lessor shell consent theret such consent shall be subject to the following condlyfones (a) each such concession or license 'hell deubject to all of the terms and provisions of thi ease; (b) the Grose Sales (as hereinbefore define from the operation of each such concession or lic ee shall be deemed to be part of the Grose Sales of ease for the purpose of deteeming the percentage r payable to Lessor hereunder; (c) all of the prov one hereof applying to the business of Leeeee, in uding the provisions concerning statements, reports a audits, shall apply to each such concession of 1 nee; (d) the business to be operated by such conce one res or licensees shall occupy, in the a agate, no more than ten (106) percent of the sales 25. SIGNS,.._AWNINGS AND CANOPIES Lessee agrees to maintain . an identification sign for the front of the Demised Premises; subject to Lessor's written a 0"Wr an meneione, material, c content and to be installed ex revel Except as heretofore essee shall not ain any sign, pawningd orLcanopy in, uponporCeoutsidentthe Demised Premises or in the Shopping Center, nor shall Lessee place in or on the display windows any sign, lettering or advertising matter of any kind without first obtaining Lessor's written consent in each instance. Lessee agrees to maintain such signs, or other installations as may be consented to, in good conditions and repair, at Lessee's own cost and expense. rc_-s.??--- other installations in order to point, redecorate o make any repairs, alterations or improvemen• n or to the Demised Premises or any pert of the ping Center to which Lessee's signs or other ellations may be affixed, Lessor shall have th ght to do so, provided the same be removed and aced at Leaaor'e coat and expense, unless th cessity therefor shall have been occasioned by a ct, omission or negligence of Leeeee of any sub nt, licensees or concessionaire of Lessee or t respective employees, agents, invitees or cc ctors, in which event Leeeee agrees to remove and SCMA Lease - Page 11 26. ASSIGNggll, SUBLETTING, ET C.$ If Lessee requests Leeeor's coneent to an assignment of this Lease or subletting of all or any part of the Demised Promisee, Leases shall submit to Lessor in writing, at least sixty (60) days before the effective date of the proposed sublease or assignment, the name of the proposed assignee or subtenants, and the nature and character of its business. Lessor shall have the option (to be exercised within forty-five (45) days from the submission of Lessee's written request) to cancel this Lease as of the Commencement Date stated in the above-mentioned sublet or assignment. If Lessor elects to cancel this Lease, then the term, tenancy and occupancy of the Demised Premises, under this Lease or otherwise, shall crminate, expire, and come to an end as if the ,::::1l:: ion date was the original termination date of the Lease. If Lessor shall not exercise its option within the time set forth above, its consent to any such proposed assignment or subletting shall not be unreasonably withheld. Lessor's consent shall be subject to the following, (a) Lessee is not then in default under any of the terms, covenants, conditions, provisions or agreements of this Lease; (b) Neither such sublease or assignment nor Lessor's consent thereto, shall release or discharge Lessee of or from any liability, whether past, present, or future, under this Lease; (c) Lessee shall continue to be fully liable under this Lease without notice being required from the Lessor of default under or in respect of any of the terms, covenants, conditions, provisions, or agreements of this Lease; (d) Any assignee shall agree to perform faithfully and be bound by all of the terms, conditions, covenants, provisions, and agreements of this Lease for the period covered by the assignment, and a duly executed copy of the assignment and assumption shell be submitted to Lessor for approval prior to execution; Premises ahalI be fortthe esame usesublet defined the Article six (6) of this Lease; (f) If a proposed assignee or subleases is a corporation the proposed assignee or subleases shall be a corporation of the State of Pennsylvania or a corporation existing under the laws of one of the United States and authorized to do business in the State of Pennsylvania; (q) The proposed assignee or subleases shall submit written financial documents evidencing financial responsibility; and makingh)such a blease sublease subject to shall the terms land provision of this Lease. SCNA Lease - Page 12 n„aaa at its own coat and expense, take good care of and make necessary eeesyeueyeee_} repairs to the Demised Promisee, and the fixtures and equipment therein and appurtenances thereto, including the exterior and interior windows, doors and entrances, store fronts, signs, showcases, floor coverings, plumbing and sewerage facilities, sprinkler system and sprinkler heads, and air conditioning and heating equipment. Any repairs to the air conditioning unit shall be done by a contractor approved and bonded to Lessor's satisfaction. All parts of the interior of the Demised Promisee shall be painted or otherwise decorated by Lessee periodically as determined by Lessor. Lessee agrees to keep and maintain in good condition the electrical equipment and heating equipment In the Demised Promisee and keep in force a standard maintenance agreement on all heating and air conditioning equipment in the Demised Premises a Lessor. "Repairs" as used nd provide a copy of said maintenance agreement to repairs, replecemental renewals,1e alterations, additions and betterments. ??• -- others for installations, maintenanc==e alterations involvin° ?ba-1 utyn n t in the Demieed Premises ng ?meintenance agreements, shall be -•--, 28. LEBSEE'S FAIr nnv m? ?- If Lessee (a) refuses or neglects to make repairs to the exterior of the demised premises, or (b) if Lessor is required to make structural repairs by reason of Lessee's negligent acts, omieeione or tortious acts, Lessor suchl have repairs right, and no for blthe taccount make of Lessee. In such event, such work shall. be paid for by Lessee as Additional Rent promptly upon receipt of a bill therefor. 29. or other liens bewfiledlagainstw the Should Demised any Premises icor any part thereof for any reason whatsoever by reasons of Lessee'e acts or omissions or because of a claim against Leases, Lessee shall cause the same to be cancelled and discharged of record by bond or otherwise within ten (10) days after notice by Lessor. Lessee's failure to cancel or discharge such lien or liens shall constitute an Event of Default. 30. UTILITI c AND QUIIPMENT& Leases shall pay promptly directly to the authority, company, or entity supplying same, as and when the same become due and payable, all water charges or sewer tax if based on use or consumption of water, gas, electricity, fuel and like utilities used or consumed in or upon the Demieed Premises, including the operation and maintenance of the heating, air conditioning and sprinkler systems for the Demised Promisee. Lessor reserves the right to interrupt the supply of water, gas, electric and also sewer service and any other similar utilities for the Demised Premises, when required by reason of accident or SCMA Lease - Page 13 27. REPAIRa M_aINTENaN v r, r x nmrn 1 Lessor shall not be required to make any repairs or improvements of env klna «.._ _ of repairs, alterations or improvements, until such repairs, alterations or improvements shall have been completed. Lessee shall be responsible for the payment of any deposits or similar charges required to be paid In connection with utilities and for the payment of any newer or other utility assessment, charge or connection fee required to be paid as a result of a change in the nature of a utility service to the Demieed Presmises after the Commencement Date of this Lease. Lessor shall not be liable for damages or otherwise for any failure to furnish or interruption of the services of water, gas, electricity or sewer or any other utility or the equipment required or utilized in connection with the consumption or distribution of same. 31. fig, (a) Lessee agrees throughout the term of this Lease to pay as Additional Rent, Lessee's Normal Percentage Share of all Land Taxes, after deducting free standing buildings cifl such dbuifrom ldings eareeincluded in the same tax bill and are assessed directly for taxes. The term "Taxes" shall include all real estate land taxes, assessments, s, of every other governmental whatsoever, charge and special, extraordinary as well as ordinary, foreseen and unforeseen, and each and every installment thereof, which shall or may during the term of this lease be levied, assessed, imposed, become due and payable, or liena upon, or arise in connection with the use, occupancy or possession of, or grow due and payable out of, or for, the Shopping Center, or any part thereof or any land, -bsi4 knge- or other improvements now or at any time during the term of this lease constituting a part of the Shopping Center, including interest on installment payments and all coats and fees (including attorneys' fees) incurred by Lessor in contesting the same and/or negotiating with the public authorities as to the game. Nothing herein contained shall be construed to include as Taxes any inheritance, estate, succession, transfer, gift, franchise, corporation, income or profit tax or capital levy that is or may be imposed upon Lessor; provided, however, that if any time during the term of this Lease the methods of taxation prevailing at the date of this Lease shall be altered eo that in addition to or in lieu of or as a substitute for the whole or any part of the Taxes now levied, assessed or imposed on real estate there shall be levied, assessed or imposeds (i) a tax on the rents received from such real estate; or (11) a license fee measured by the rents receivable by Lessor from the Shopping Center or any portion thereof; or (iii) a tax or fee imposed upon Lessor which is otherwise measured by or based in whole or in part upon the Shopping Center or any portion thereof; then the same shall be included in the computation of Taxes, computed as if the amount of such tax or fee so payable were that part due if the Shopping Center was the only property of Lessor subject thereto. Lessee's Normal Percentage Share of Taxes shall be equitably prorated during the first and last years of the term of this Lease. Lessee's obligation shall survive the expiration of the term hereof. SCHA Lease - Page 14 Percentage (bS) to see's Normal harea OfnTaxes shallrbeomadeewithin twenty (20) days after Lessor's written demand therefor or, at Lessor's option and without thereby waiving Lessee's liability for the entire amount of Lessee's Normal Percentage Share of Taxes then due, Lessee agrees to pay to Lessor Lessee's Normal Percentage Share of Taxes in equal monthly installments on the first day of each month, in advance. The amount of such monthly installments shall be computed by Lessor on the basis of the then preceding fiscal tax year or years. If the amount of said monthly payments paid by Lessee exceeds the actual amount thereafter due, the overpayment shall be credited on Lessee's next succeeding payment to be made on account of Lessee's Normal Percentage Share of Taxes. If the amount of said monthly payments paid by Lessee shall be lees than the actual amount due, Lessee shall pay to Lessor the difference between the amount paid by Lessee and the actual amount due, within twenty therefore. dayLessorft shall Lessor's the right, but not demand obligation, if permitted by law, to make installment payments of any Taxes levied against the Shopping Center, and in such event, Lessee's Normal Percentage Share of Taxes shall be computed upon the installments and interest thereon payable by Lessor, in each calendar year. delin uenc (c) Lessee agrees to pay, prior to , any assessed yduring athea term taxes hereof and upon assessments or against levied improvements, furniture, fixtures, equipment and any other personal property installed by or on behalf of Lessee or anyone holding all or any part of the Demised Promisee through or under Lessee. Shoul that any t(ax)or otherdchargeo(o hertthan Taxestybe quire by Lessee, but collected by Lessor, for and on)behalfaof said governmental authority, and from time to time forwarded by Lessor to said governmental authority, the some shall be paid by Lessee to Lessor, and payment thereof may be enforced in the same manner as is provided for the enforcement of payment of rent hereunder; and for the purpose of enforcing payment thereof shall be deemed additional rent hereunder. payment on account of after Lessee's Normal shall Percentage ma Share of Taxes, Lessor shall receive a refund of any portion of Taxes on which such payment shall have been based, Lessor's statement rendered pursuant to subdivision (f) of this Paragraph next following ouch refund shall include an adjustment reflecting Lee see's Normal Percentage Share of the net refund (i.e., after deducting all costa and expenses, including reasonable attorneys' and appraisers' fees, incurred by Lessor in connection with securing such refund) which shall be computod in the same ratio as Lessee's Normal Percentage Share of Taxes bears to the total Taxes after giving pro rata credit to any other lessee in a free standing building whose contribution for Taxes is deducted from the Total Taxes before the balance is apportioned among the balance of the lessees. Lessee shall not institute any proceedings with respect to the assessed valuation of the Shopping Center or any part thereof or the Taxes thereon except for the improvements occupied by Lessee. SCMA Lease - Page 15 ) An amount b Lessee to Lessor under thisfParagraph shall b ypaid by Lessee to Lessor within twenty (20) days after receipt by Lessee from Lessor of a bill or statement setting forth such amount. In the event of any dispute, Lessee shall pay the amount of Taxes In accordance with the applicable bill or statement, and such payment shall be without prejudice to Lessee's position. If the dispute shall be determined in Lessee's favor, by agreement or otherwise, Lessor shall pay to Lessee the amount of Lessee's overpayment resulting from compliance with such bill or statement. Any such bill or statement shall be deemed binding and conclusive if Lessee fails to object thereto within twenty (20) days after receipt thereof. 32. COMMON AREAS, All common areas from time to time made available by Lessor in or about the Shopping Canter are subject to the control and management of Lessor, and Lessor expressly reserves the right, without limitation, to erect and install within the Mall and parking areas, kiosks, planters, pools, sculptures or other improvements and such free standing buildings as may be permitted by the Town of Carlisle. The phrase "common areas" shall mean all areas, apace, facilities, equipment, signs and special services from time to time made available by Lessor for the common and joint use and benefit of Lessor, Lessee and other lessees and occupants of the Shopping Center, and their respective employees, agents, subtenants, concessionaires, licensees, customers and other invitees, which may include (but shall not be deemed a representation as to their availability), the enclosed Mall, sidewalks, parking areas, access roads, driveways, ramps, corridors, stairs and balconies therein, roof, storm and sanitary sewers, common underground utility lines, landscaped and planted areas, and other areas not developed or landscaped, directory signs and equipment, public rest rooms, lockers and locker rooms, wash rooms, comfort rooms, drinking fountains and other like public facilties, bus stands, taxi stands and the like and areas and equipment used by Lessor for the operation, maintenance and management of the Shoping Center, am Lessor shall deem appropriate (as initially constructed or as the same may at any time thereafter be enlarged or reduced), and Lessor hereby expressly reserves the right, from time to times to construct, maintain and operate lighting and other facilities, equipment and signs and any part(s) or all of said common areas; to police the same; to change the area, level, location and arrangement of the parking areas and other facilities forming a part of said common areas; to build multistory parking facilities; to expand the land area of the Shopping Center and to erect additional buildings thereon or on such additional land or add to any building now or hereafter located in the Shopping Center, as the same may be expanded, as long as Lessor receives the necessary approvals of the Town of Carlisle; to restrict parking by lessees and other occupants of the Shopping Center and their employees, agents subtenants, concessionaires and licensees; to enforce parking charges (by operation of meters or otherwise); and to establish, modify and enforce reasonable rules and regulations with respect to the SCMA Lease - Page 16 common areas and the use to be made thereof. Lessor shall operate, manage, equip, police, light and maintain the common areas in such manner as Lessor may from time to time determine, and Lessor shall have the sole right and exclusive authority to employ and discharge all personnel with respect thereto. Lessor may, however, cause any or all of the foregoing to be provided by an independent contractor or contractors. Leeeee le hereby given a license (in common with all others to whom Lessor has or may hereafter grant rights) to use, during the term of this lease, the common areas as they may now or at any time during the term of this Lease exist; provided, however, that if the size, location or arrangement of the common areas or the type of facilities at any time forming a part thereof be changed or diminished, Lessor shall not be eubj ect to any liability therefor, nor shall Lessee be entitled to any compensation or diminution or abatement of the Fixed Minimum Rent, additional rent or other charges payable by Leeeee hereunder, nor shall such change or diminution of such areas be deemed a constructive or actual eviction. Lessor may, at any time and from time to time, close any common area to make repair: or changes therein or to effect construction, repairs or changes within the Shopping Center, to prevent the acquisition of public rights In such area, or to discourage non-customer Parking, and may do such other acts in and to the common areas as in its judgment may be desirable to improve the convenience thereof. 33. rOMMON AREA AINT N N I1aR F: (a) In each "Calendar Year" and "Partial Calendar Year", Lessee shall pay to Lessor its Normal Percentage Share of the "Operating Cost" (as defined in Article 41 of the Exterior Common Areas, computed as set out in paragraph (b) of this Section (the "Common Area Maintenance Charge"). The term "Partial Lease Year" shall be the period from the date of delivery of the Demised Premises through the next succeeding December 31, or, as the case may be, the period during the lest year of the Lease from January 1, to the date of the expiration of the term. (b) The term "Operating Cost" shall mean the total cost (other than the coat properly chargeable to capital account, except as herein specifically provided) and expense incurred in operating, maintaining, equipping, inspecting, insuring, protecting, and repairing the Common Areas in and on the Shopping Center including, without limitation, the coot or expense of or incurred in connection with or reasonably attributable to: lighting of parking areas and other Common Areas; gardening and landscaping (including plantipg, replanting and replacing flowers and shrubs); cleaning; public liability, ftre•, csene}ti worker's compensation, property damage, hazard, property insurance and other insurance premiums and costs relating to the Exterior Common Areas in the ShoPPinc Center: ---' reasonanie management or supervisory fee paid or incurred by Lessor to any person; -fire-preteelte+r fees for required licensee; personal property taxes; line painting; sanitary control; wartay shaggesf SCRA Lease - Page 17 (including costs and expenses incurred in connection with sanitary and storm sewer systems servicing the Shopping Center; removal of ice, snow, r7 -- -9V ?M-Da tie --- an abber gal"Gal maintenance of those public roads in the vicinity of the Shopping Center which are required to be maintained by Leeeor; maintaining security and directing traffic; depreciation on machinery and equipment used in such maintenance; deprecie tion on parking lot paving and lighting; personnel to provide and supervise such services (including wages, unemployment and social security taxes); plus an amount equal to 15% of the total of all the foregoing as an agreed upon reimbursement covering the administrative costa to be incurred by Lessor in connection with the operation of the Common Areas. ( exterior areae The apaterm "Common ce, equipment rand special m services o h Shopping provided for the common or joint useandbenefitenofr Lessor, the occupants of the building and their employees, agents, servants, customers and other invitees, including, without limitations all open pedestrian areas; customer and employee parking areas end parking lot improvements; access and ring roads; -knterter stairs, driveways, retaining walls; exterior boundary wells and fences; water, sanitary, storm newer, gag, electric, telephone and other utility lines, systems, conduits and facilities to the perimeter walls of any building (even though intended for the use of only one or a limited number of occupants) •?w=?-- y-..y-wa:ea-serve--sse-sosmmaw-ASaas}- plantings; landscaped areas, truck serviceways or tunnels; loading dock areas and facilities; courts; ramps; sidewalks; Wbshwoemst--pa? and pylon sign on the Shopping Center; dsungeai-dr?nk?,ne-€euntwina,-,.ez. and the facilit all of the foregoing. ies appurtenant to ea a by Lessee( under this Section Maintenance paid C in Cost payable installments on the first day of each calendar month in advance, in an amount estimated by Lessor. Within 120 days after the and of each Calendar Year (or Partial Calendar Year), Lessor shall furnish Lessee a statement summarizing the actual Operating Cost for the preceding Calendar Year (or Partial Calendar Year) and setting forth the method by which the Common Facilities Contribution payable by Lessee was arrived at as herein provided. To the extent the aggregate of the monthly Common Facilities Contribution paid by Lessee during such Calendar Year (or Partial Calendar Year) is lees thanthe actual amount due, Lessee shall pay Lessor the difference between the amount paid by Lessee and the actual amount due, within 10 days of demand therefor by Lessor. Any claim by Lessee for revision of any statement submitted by Lessor hereunder for any Calendar Year (or Partial Calendar Year), which claim is not made within 12 months after the and of such Calendar Year (or SCMA Lease - Page 18 Partial Calendar Year), shall be deemed waived and discharged. For the Calendar Year (or Partial Calendar Year) in which this Lease commences or terminates, Lessee's Common 'Area Maintenance Charge shall be prorated, if applicable. 34. INDEMNITYs (e TPNANT'R INDEMNIFICATION Tenant will indemnify and hod Landlord harmless from any claim or in any litigation arising out of occurrences in or at the leased space or as occasioned or suffered by Tenant or any of its employees, agents, or persona in attendance in or at such space, including for damages awarded for claims, or for coats or attorney's fees. (b) LANDLORD'S INDEMNIFICATIO){i Landlord likewise agrees to indemnify and hold Tenant harmless from any claim or in any litigation arising out of occurrences emanating from the structures of the shopping center other than the demised premises or occurring in the common areas or parking areas, and not attributable to Tenant's use of such facilities, nor to the use of any other tenant of the shopping center directly or from any claim or litigation as occasioned by Landlord or any of its employees, agents or persons frequenting the common or parking facilities, including for damages awarded for such claims or for coats or attorney's fees; proving that Landlord's expenses for such matters which are normally attributable to general maintenance costs and apportioned among Tenants may continue to be so treated, including as to Tenant's portion. SCMA Lease - page 19 35. INSURANCES (e) Lessor agrees to purchase and maintain in full force end effect throughout the term of this Lease with or without deductibleei (i) public liability insurance insuring against bodily injury and property damage covering common areas of the Shopping Center of at least $3,000,000.00 and $250,000.00 -?keeejy (iv) workers compensation insurance; (v) and ouch other coverages and in such amounts and as Lessor or any of its Mortgagees may reasonably require. Lessee agrees to reimburse Leeeor for its Normal Percentage Share of the premiums on liability policies maintained by Lessor in accordance with this Article 35. (b) Lessee will, at its Dole cant and expense, during the terms hereof, maintain and deliver to Lessor evidence of public liability insurance coverage with respect to the Demised Premises, the same having a limit of not lees then $3,000,000.00 for bodily injury and property, damage. Plebe SCNA Lease - Page 20 36. INSUREDS. WAIVER. NOTICES All insurance policies to be procured by Lessee in compliance with the requirements of Article 35(b) hereof shall be issued in the name and for the benefit of Lessee, and shall name Lessor and its designees as additional insureds, by one or more responsible insurance companies satisfactory to Lessor and licensed to do business in the Commonwealth of Pennsylvania; and, at Lessee's option, such insurance may be carried under a blanket policy covering the Demised Premises and any other of Lessee's stores. Each of such policies shall contain the following endorsemantes (a) that such policy may not be cancelled or amended with respect to Lessor or any of its designees, except upon thirty (30) days' prior written notice to Lessor and ouch designees sent by certified or registered mail; (b) that Lessee shall be solely responsible for the payment of all premiums under such policy end that Lessor and its designees shall have no obligation for the payment thereof; (c) neither Lessor nor Lessee shall be liable to the other or any insurance company (by way of subrogation or otherwise) insuring the other party for any lose or damage to any building, structure or other tangible property, or any resulting lose of income or losses under worker's compensation }awe and benefits, even though such lose or damage might have been occasioned by the negligence of ouch party, its agents or employees if any such lose or damage is covered by insurance benefitting the party suffering such lose or damage or was required to be covered by insurance pursuant to this Lease; end (d) an express waiver of any right of subrogation by the insurance company against Lessor, Lessee hereby expressly waiving any such right of subrogation for any reason or occurrence whatsoever. Lessee agrees to deliver to Lessor Certificates or Memoranda of Insurance of all such policies of insurance to be procured by Lessee within fifteen (15) days of inception of such policies and, at least fifteen (15) days prior to the expiration of any such policy, Lessee shall deliver to Lessor Certificates or Memoranda of Insurance evidencing the renewal thereof. The minimum limits of any insurance coverage to be maintained by Lessee hereunder shall not limit Lessee's liability under Article 34 hereof. 37. INCREASE IN INSURANCE PREMIUMSs Lessee shall not stock, use or sell or permit to be stocked, used or sold any article or do anything in or about the Demised Premise: which may be prohibited by, or violate any of, Lessor's insurance policies or the rules and regulations of the Fire Insurance Rating Organization having jurisdiction or any similar body, or which will increase any insurance rates and premiums on the Demleed Premises, the Building and/or any other buildings or improvements in the Shopping Center. If as a result of: (i) any failure of Lessee, or anyone claiming by, through or under Lessee, to comply with the foregoing sentence of this subdivision, or (ii) the use and occupancy of the Demised Premises by Lee see or anyone claiming by, through or under Lessee, whether or not Lessor has consented to the same, or (iii) Lessee's failure to use and/or continuously to occupy and operate Lessee's business in the Demised Premises in the manner provided for in this lease, or (iv) Lessee's abandonment of the Demised Premises, the insurance rates applicable to any policies of insurance carried by Lessor covering the Shopping Center or the rental income to be derived therefrom shall be increased, Lessee agrees to pay Lessor within ten (10) days after Lessor's written demand therefor, as additional rent, the entire portion of the premiums for said insurance which shall SCMA Lease - Page 21 be attributable to such higher rates. In determining whether any increase in such rates is the result of any of the aforementioned acts or omissions of Lessee or anyone claiming by, through or under Lessee, a schedule or rule book issued by the applicable rating organization or the rating procedures or rules of Lessor's insurance companies shall be conclusive evidence of the several items and charges which make up the insurance rates and premiums on the Demised Premises and the Shopping Center. If any such insurance carried by Lessor shall be cancelled by the insurance carrier as a result of any of the aforementioned acts or omiaelons of Lessee or anyone claiming by, through or under Lessee, Lessee agrees to indemnify and hold Lessor harmless from all damages, costs and expenses which Lessor may suatain by reason thereof. 38. DESTRUCTIONt If the building on the Demised Premises shall be damaged or destroyed, Lessee shall repair and restore the Demised Premises (exclusive of Lessee's trade fixtures, decorations, signs and contents) substantially to the condition thereof immediately prior to such damage or destruction. If by reason of such occurrence the building on the Demised Premises is rendered wholly untenantable, then Lessee may elect either to repair the damage as aforesaid, or to cancel this Lease by written notice of cancellation given to Lessor within one hundred eighty (180) days after the date of such occurrence and thereupon this Lease shall cease and terminate with the same force and effect as though the date set forth in Lessee's notice were the date fixed for the expiration of the term hereof, and Lessee shall vacate and surrender the Demised Premises to Lessor. Upon the termination of this Lease, Lessee's liability for rents shall cease as of the effective date of the termination of this Lease subject, however, to Lessee's responsibility at Lessee's cost and expense to reconstruct the building on the Demised Premises as hereinabove set forth. In such event the Lessor shall have the option of accepting from Lessee a mutually agreed upon cash sum in lieu of said reconstruction, but Lessee shall have the responsibility of removing the, remains of the building on the Demised Premises, whereupon the restrictive covenant dealing with the use of said building after vacation by the Lessee will be void and of no effect. SCHA Lease - Page 22 Dy reason of such fire or other casualty the Demis Premises is rendered wholly untenantable the F1 d Minimum Rent shall be fully abated, or if only parti ly damaged, the Fixed Minimum Rent shall be a ted proportionately as to that portion of the D mised Premises rendered untenantable, in either event unless Lessor shall elect to terminate this Leas until fifteen (15) days after notice by Lessor to Le me that the Demised Premises have been eubstantiall repaired and restored or until Lessee's business ope ations are restored in the entire Demieed Premises, wh chever shall occur sooner. Lessee shall continue th operation of Lessee's business in the Demised Premis or any part thereof not so damaged during any suc period to the extent reasonably practicable from t standpoint of prudent business management. and, except for much abatement of the Fixed Minimum nt nothing herein contained shall be construed o abate Lessee's obligations for the payment of t Percentage Rent or any other rents and charges res ad hereunder, except that the computation of such p rcentage rent shall be based upon the revised Fixe Minimum Rent as the same may be abated. If such dam a or other casualty shall be caused by the negligent of Lessee or any subtenant, licensee or concessionaire f Lessee or their respective employees, agents, invit as or contractors, there shall be no abatement of rent Except for the abatement of the Fixed Minimum Ren hereinabove set forth, Lessee shall not be entitl to and hereby waives all claims against Lessor for y compensation or damage for lose of use of the whole or any part of the Demised Premises and/or £or any in onvenience or annoyance occasioned by any such damage, destruction, repair or restorat*on. The provieione f any statute or other law which may be in effect at .he time of the occurrence of any such damage or destruction, under which a lease is automatically terminated or a lessee is given the right to termin a a lease upon the occurrence of any such damage o destruction, are hereby expressly waived by Lessee. ything herein to the contrary notwithstanding, Lessor shall have the option to cancel this lease and shall have no obligation to restore damage to the Shop ng center and/or the Demised Premises unless the hol re of all mortgages encumbering the Shopping Ce ter, or any part thereof, turn over to Lessor the tiret_ lose proceeds and such lose proceeds are 39. CONDEMNATIONS (a) If the shopping center is taken by any authority under eminent domain, in either of the forme described below, the lease will be terminated at that time, and all adjustments in rent will be made pro rata to that time and payable then. "Taken" under such proceedings refers to the time when either the provisions of an agreement by Landlord with the condemning authority or order of a court of competent jurisdiction, the right to immediate physical possession is given to such authority. The following kinds of taking are covered by the terms of this leases (i) the entirety of the leased space; (ii) ten (109) percent or more of the leased apace and in such a fashion to substantially prevent the conduct of Tenant's business in the normal manner; (iii) apace of fifty (509) percent or SCMA Lease - Page 23 more of the tenants in the shopping center; (iv) parking area to the extent where the number of square feet of parking area for each square foot of leasable area in the shopping center falls below two (2). (b) p08TPONEMBNT OF TR MINATION MD RESUMPTION OF LEASHo However, to the extent Landlord, by written notice to Tenant, by time of such taking an defined above, offers to, and reasonably can at its own expense, provide for reasonable substitution of similarly improved space, the lease will not terminate and Tenant will continue on in business operation under this lease as soon as Landlord can arrange it. During any such period as Tenant is not able to conduct its business, the rent will be suspended until resumption of such business, and will be adjusted pro rate for such period of time. (c) ENTITLEMENT TO AWARD OR DAM?? Landlord and Tenant will sbare any condemnatlon award to the extent of their respective interest in the demised promisee. SCHA Lease - Page 24 40. LESSEE'S p FA nmt If any failure of the Lessee hereunder in the payment of Fixed Minimum Rent or Additional Rent for five (5) days after notice thereof from Leeeor, or any failure of the Lessee to perform any of its covenants and agreements hereunder, other than the payment of Fixed Minimum Rent and Additional Rent, shall continue uncorrected for thirty (30) days after notice thereof from the Lessor, the Lessor may, by giving notice to the Lessee at any time thereafter during the continuance of such default, either: (i) terminate the Lease; or (ii) re-enter the Demised Premises by summary proceedings or otherwise, including forced re-entry, expel the Lessee and other occupants and remove all property therefor and repossess and enjoy said premises together with all additions, alterations and improvements thereto. (b) in case of such termination, re-entry, or dispossession or removal by summary proceedings or otherwise, the annual rent and all other charges required to be paid by the Lessee hereunder shall thereupon become due and be paid up to the time of such termination, re-entry, or dispossession or removal, and the Lessee shall also pay to the Lessor, in whole or in part, either in its own name or ae agent of the Lessee, for a term or terms which, at the Lessor's option, may be for the remainder of the then current term of this Lease, or for any longer or shorter period, and (unless the statute or rule of law which governs the proceeding in which such damages are to be proved limits or shall limit the amount of ouch claim capable of being so proved and allowed, in whole or in part, either in its own name or as agent of the Lessee, for a term or terms which, at the Lessor's option, may be for the remainder of the then current term of this Lease, or for any longer or shorter period, and (unless the statute or rule of law which governs the proceeding in which such damages are to be proved limits or shall limit the amount of such claim capable of being so proved and allowed, in which came the Lessor shall be entitled to prove as and for liquidated damages and have allowed an amount equal'to the maximum allowed by or under any such statute or rule of law) the Lessee shall be obligated to, and shall pay to the Lessor as damages, upon demand, and the Lessor shall be entitled to recover of and from the Lessee, at the election of the Lessor, either: (1) Liquidated damages, in an amount which, at the time of such termination, re-entry or dispossession removal by the Lessor, an the case may be, is equal to the excess, if any, of the then present value of the installments of annual rent reserved hereunder, for the period which would otherwise have constituted the unexpired portion of the then current term of this Lease, over the then present value of the Demised Premises for such unexpired portion of the than current term of this Lease, discounted at the rate of ten (10%) percent per annum; or (2) Damages (payable in monthly installments, In advance, on the first day of each calendar month following such termination, re-entry or dispossession, and continuing until the date originally fixed herein for the expiration of the then currant term of this Lease) in any amount or amounts equal to the excess, if any, of the sums of the aggregate expenses SCMA Lease - Page 25 paid by the Lessor during the month immediately preceding such calendar month for all such items as, by the terms of this Lease, are required to be paid by the Lessee, plus an amount equal to the amount of the installment of annual rent which would have been payable by the Lessee hereunder in respect to such calendar month, had this Lease and the Demised term not been so terminated, and the Lessor not so re-entered, over the sum of rents, if any collected by or accruing to the Lessor in respect to such calendar month pursuant to such re-lotting or any holding over by any subtenants of the Lessee, plus the amount of the rental value of any portion of the Demised Premises occupied by the Lessor or any agent of the Lessor. Any suit for any month shall not prejudice in any way the rights of the Lessor to collect the deficiency for any subsequent month by a similar proceeding. The Lessor, at its option and at its expense, may make such alterations, repairs and/or decorations in the Demised Premises as in its reasonable judgment the Lessor considers advisable and necessary, and the making of such alterations, repairs and/or decorations shall not operate or be construed to release the Lessee from liability hereunder. The Lessor shall in no event be liable in any way whatsoever for failure to re-let the Demised Premises or in the event the Demised Promisee are re-let, for failure to collect rent therefor under such re-letting, provided Lessor uses its beet efforts to lease the Demised Premises and to collect rent and in no event shall the Lessee be entitled to receive any excess of such annual rents over the sums payable by the Lessee to the Lessor hereunder but such excess shall be credited to the unpaid rentals due hereunder, and to the expenses of re-letting and preparing for re-letting as provided in (1) hereof. Suit or suits for the recovery of such damages, or any installments thereof, may be brought by the Lessor from time to time at its election, and nothing herein contained shall be deemed to require the Lessor to postpone suit until the date when the term of this Lease would have expired if it has not been terminated under the provisions of this Lease, or under any provision of law, or had the Lessor not re-entered into or upon the Demised Premises. (c) Lessee hereby expressly waives any other notices which may be required by law to cancel this Lease. If any default by Lessee cannot reasonably be remedied within such thirty (30) day period after notice of default (except rent and other monetary payments) then Lessee shall have the additional time reasonably necessary to remedy the condition before the Lease can be terminated or other remedy enforced by the Lessor, provided that Lessee makes and continues to make a good faith and diligent effort to remedy same. (d) Notwithstanding anything in this lease to the contrary in the event of any default by the Lessee after due notice to Lessee, the Lessee hereby empowers any Prothonotary or attorney of any court of record in the Commonwealth of Pennsylvania to appear for the Lessee in any and all actions which may be brought as a result of such default, to confess judgment against the Leeeee for all or any amounts due as specified in this Lease and then unpaid, including, at Lessee's option, the annual rental and for the entire unexpired balance of the term of this Lease and for interest and costa, together with an attorney's commission of five (59) SCNA Lease - Page 26 percent. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time, as often es said rent or "additional rent" shall fall due or be in arrears. (a) In the event of any default by the L for essee, after due notice to Lessee, it shall be lawful any agreement aforr entering tin any cfor Lessee to ompetent court fine the Commonwealth of Pennsylvania an amicable action and judgment in ejectment against the Lessee and all persona claiming under the Lessee for the recovery by Lessor of possession of the herein Demised Premises, for which this Leese shall be his sufficient warrant, whereuppon, if Lessor no desires, a writ of habere fabiee possessionem may issue forthwith, without any prior writ or proceedings whatsoever, and provided that if for any reason after such action shall have been commenced the same, shall be determined and the possession of the promisee hereby demised remain in or be restored to Lessee, Lessor shall have the right upon any subsequent default or defaults, or upon the termination of this Lease, to bring one or more amicable action or actions to recover possession of the said premises. 41. LESSEE'S NDRMar PER xwTAG9 SHARE Lessee's Normal Percentage Share shall be determined by dividing the total number of square feet of lend area in the Demised Premises by the total number of square feet of lend area in the property. areas which are part of the property comprisig t Shopping Center and Shopping Mall. it is Lnees •s intent to lease any building located on such adds onal areas on a basis providing for the lessee or e6 thereof to pay for all expenses for texas, i urapcaee,e maintenance and operating expenses affecting aid each additional areas so that the coats ther f are not included in the costa paid by other le see of the Shopping Center or Shopping Mall, as app cable. In the event any such coat or expense aff tang said such additional areas cannot be separatel obtained, Lessor shall equitably apportion to such dditional areas proportionate share thereof end t at of such coat shall be paid by the Cassese o he 6hopping Center or Shopping Mall, as applicable It is understood that Lessor shall pay the // ormal Percentage Share attributable to all unl Q(ed leasable apace in the Shopping Center or Shopp4 Mall, as applicable. After completion of conetrqu6ption, Lessors architect shall space determine the e s of such xact oareaseand in ethe fDemieed Premises. Premises' shoe belmeasured from center of partitionieto center of ertition, except that in the event the Demised emiaee or any part thereof is an end apace, said in eurement shell include the full width of and walls; and depth of the Demised Premises shall be measur from the exterior faces of the walls (outside dime ions) or if the Demised Premises or any part the of are not surrounded by walla then the apace w hin and up to the lease lines of the Demised Premises SCMA Lease - Page 27 made from areas'or space otherryy?j,,ae?emp-y???uta?6y eeeo?rt of interior tione,ines, or other interior right to piece, maintain and -re peir yell util y equipment of any kind in, upon end under the De sed Premises as may be necessary for the servicing o the Demised Premises and other portions of the Hoping Center. Lessor shall also have the right to liter the Demised Premises at all times to inspect or exhibit the same to prosepctive purchasers, mortgggees, leaseea and tenants and to make such repel d, additions, alterations or improvements as L"" or may deem desirable. Lessor shall be allowed tp -store and to take all material in, to, through and upo said premises that may be required therefor or en lfere else within the Shopping Center or any addition orate without the some constituting an eviction of ease in whole or in part and the rents reserved shall not abate while said work is in progress by reaso of loss or interruption of Lessee's business or oth lea and Lessee shall have no claim for damages. I Lessee shall not be personally present to permit an/entry into said premises when for any reason an entry/therein shall be permissible, Lessor may enter the Game by a master key or by the use of force without? endering Lessor liable therefore and without in fiY manner affecting obligations of this Lease. Th provisions of this Paragraph shall not be conotrued to impose upon Lessor any obligation whateoev for the maintenance or repair of the Shopping Center or any part thereof except as otherwise herein spec cally provided. During the six (6) months prior to the expiration of this Lease or any renewal term, L eor may place upon the said premises "To Let" signs 43. EBCAVATIONs If any excavation shall be made upon lend adjacent to the Demised Premises, Lessee shall permit the party authorized to cause such excavation to be made to enter upon the Demised Premises for the purpose of doing such work as such party may deem necessary to preserve the walls of the Shopping Center from damage and to support the same by proper foundations and shoring, and Lessee hereby waives all claims for inconvenience, disturbance, lose of business or other damages against Lessor therefore and without in any manner afecting Lessee's obligations under this Lease, not shall the same constitute any ground for an abatement of any rents hereunder. 44. SUBOADINATIONs Lessor and Lee see agree that this Lease be and the same hereby is mode subject and subordinate at all times to all covenants, restrictions, easements and encumbrances now or hereafter affecting all or any part of the fee title of the Shopping Center and to all ground and underlying leases and mortgages or any other method of financing or refinancing covering the said fee title or any interest therein in any amounts, and all advances thereon, which may now or hereafter be placed against all or any part of the lend and/or the Buildings and improvements now or hereafter erected thereon, and now or hereafter constituting a part of the Shopping Center, and to all renewals, modifications, consolidations, participations, replacements and extensions thereof. The term SCMA Lease - Page 28 "mortgages as used herein shall be deemed to include trust indentures and deeds of trust. The aforesaid provisions shall be self-operative and no further instrument of subordination shall be necessary unless required by any such ground or underlying lessors or mortgagees. 45. FSTOPPEL• RTIFI ATEs Lessee agrees at any time and from time to time, ten (10) days of Lessor's request, to execute, acknowledge and deliver to Lessor a statement in writing; addressed to Lessor or its designee, certifying that this Lease is unmodified and in full force and effect (of if there have been modifications, that the Lease is in full force and effect as modified, and stating the modifications); stating the dates to which the rent and other degrees have been paid and stating whether or not there exists any default in the performance of any covenant, agreement, term, provision or and condition contained In this Lease; and if so, specifying each such default of which the signer may have knowledge, it being in ended that any such statement delivered may be relied upon by any purchaser of the Demised Premises, by Lessor and by any mortgages or prospective mortgagee of any mortgage affecting the Demised Premises, and by any Lessor under a ground or underlying lease affecting the land or Building or both. 46. ATTORNMENTi Lessee agrees that in the event of a sale, transfer or assignment of Lessor's interest in the Shopping Center or any part thereof, including the Demised Premises, or in the event any proceedings are brought for the foreclosure of, or for the exercise of any power of sale under, any mortgage covering the Shopping Center or any part thereof, including the Demised premises, or in the event of a cancellation or termination of any ground or underlying lease covering the Shopping Center or any part therof, including the Demised Premises, to attorn to and to recognize such transferee, purchaser, mortgagee or ground or underlying lessor, as lessor under this Lease, the same on the express condition that any lender, trustee or mortgagee shall enter into an agreement with Lessee, providing that the occupancy by Lessee of the Demised Premises shall not be disturbed so long as Lessee is not in default hereunder. 47. ATTORNEY-IN-FACT: In the event Lessee shall fail or refuse to execute and deliver to Lessor the documents that may be required to evidence the intent of Articles 39, 44, 45, and 46 hereof within ten (10) days after Lessor's written request therefor, Lessee hereby irrevocably appoints Lessor as attorney-in-fact for Lessee with full power and authority to execute and deliver such instruments for and in the name of Lessee, or Lessor may treat such failure on the part of ;:eases as an Event of Default with the meaning ofArticle 40 of this Lease. 48. QUIET ENJOYMENT, Lessee, upon paying the rents herein reserved and performing and observing all of the other terms, covenants and conditions of this Lease on Lessee's part to be performed and observed hereunder, shall peaceably and quietly have, hold and enjoy the Demised Premises during the term hereof, subject, nevertheless, to the terms of this Lease and to any mortgagee, ground or underlying leases, agreements and encumbrances to which this Lease is, or may hereafter be, subordinated. SCMA Lease - Page 29 and part abide by pay to th for each assoclatic with its agrees to Associati es of rte such other amount as the a to time approve in accordance rules and regulations. Lessee f a copy of the By-laws of M. J. 50. FORCE Lessor shall be excused for the period or periods of delay in the performance of any of Lessor's oblggations hereunder when delayed, hindered or prevented from so doing by any cause or causes beyond Lessor's reasonable control, which shall include, without limitation, all delays caused by Lessee, labor disputes, riote,civil commotion or insurrection, war or warlike operations, invasion, rebellion, military or usurped power, sabotage, governmental restrictions, regulations or controls, inability to obtain any materials, services or financing, fire or other casualties, or acts of God. 51. SURRENDER OF PR-MIS Q, Upon the expiration or sooner termination of the term of this Lease, Lessee agrees to quit and surrender the Demised Premises, broom clean, in good condition and repair, reasonable wear and tear excepted, together with all keys and combinations to locks, safes and vaults and all improvements, alterations, additions, fixtures and equipment at any time made or installed in, upon or to the interior or exterior of the Demised Premises, (except personal property and other moveable trade fixtures put in at Lessee's expense) all of which become the property of Lessor without any claim by Lessor therefor, but the surrender of such property to Lessor shall not be deemed to be a payment of rent or in lieu of any rent reserved hereunder. Unless directed in writing by Landlord not to do ac not later than thirty (30) days prior to the Termination Date, before surrendering the Demised Premises, Lessee shall remove all of Lessee's said personal property and movable trade fixtures and, at Lessor's option, Lessee shall also remove any improvements, alterations, additions, fixtures, equipment and decorations at any time made or installed by Lessee in, upon or to the interior or exterior of the Demised Premises, and Lessee further agrees to repair any damage caused thereby. If Lessee shall fail to remove any of its personal property and trade, fixtures, said property shall, at the option of Leeeor, either be deemed abandoned and become the exclusive property of Lessor, or Lessor shall have the right to remove and store said property, at the expense of Lessee, without further notice to or demand upon Lessee and hold Lessee responsible for any and all charges and expenses incurred by Lessor. If the Demised Premises are not surrendered as required, Lessee shall indemnify Lessor against all loss or liability resulting from the delay by Lessee in so surrendering the same, including, without limitation, any claims made by any succeeding occupant founded on such delay. Lessee's obligations under this Article shall survive the expiration or sooner termination of the term of this Lease. 52 HOLDING OVERT Any holding over after the expiration of this term or any renewal term shall be construed to be a tenancy at will, a month to month its ruled and Merchants calendar aua SCMA Lease - Page 30 tenancy, or a one year tenancy at Landlord\s sole discretion at the rent equal to twice the rentals herein specified (prorated on a monthly basis) and shall otherwise be on the terms herein specified so far as applicable. 53. NO wAIVERt The failure of Lessor to insist upon the strict Performance of this Lease, or the failure of Lessor to exercise any right, option or remedy hereby reserved shall not be construed as a waiver of any ouch provision, right, option or remedy or as a waiver of a subsequent breach thereof. The consent or approval by Lessor of any act by Leases requiring Lessor's consent or approval shall not be construed to waive or render unneces eery the requirement for Lessor's consent or approval of any subsequent similar act by Lessee. The receipt by Lessor of Fixed Minimum Rent or other rents and charges payable by Lessee, with knowledge of a breach of any provision of this Lease, shall not be deemed a waiver unless such waiver shall be in writing signed by Lessor. No payment by Lessee or receipt by Lessor of a lesser amount than the Fixed Minimum Rent or other rents shall be deemed to be other than on account of the earliest Fixed Minimum Rent or other rents and charges then unpaid, nor shall any endorsement or statement on any check or any letter accompanying any check or payment by Lessee be deemed an accord and satisfaction and Lessor may accept and negotiate such check or payment without prejudice to Lessor's right to recover the balance at such Fixed Minimum Rent or other rents and charges due or Lessor may pursue any other remedy in this Lease provided, and no waiver by Lessor in favor of any other lessee or occupant of the Shopping Center shall constitute a waiver in favor of Lessee. 54. NOTICESs Every notice, demand, request, consent, approval or other communication which may be or is required to be given under this lease or by law shall be sent by United States Certified or Registered mail, postage prepaid, return receipt requested, and shall be addressed; (a) if to Lessor, to Leeeor's Mailing Address, and (b) if to Lessee, to the Demised Premises or to Lessee's Mailing Address. Either party may designate, by similar notice to the other party, any other address for such purposes. Upon written notice from Lessor, Lessee will also send notices to Lessor's mortgagee or mortgagees. 55. RECORDINGi Lessee shall not record this Lease or any memorandum thereof without the prior written consent of Lessor. 56. PARTIA., INVALIDITYz If any provision of this lease or the application thereof to any person or circumstances shall to any extent be held invalid, then the remainder of this Lease or the application of such provision to persons or circumstances other than those as to which it is held invalid shall not be affected thereby, and each provision of this Lease shall be valid and enforced to the fullest extent permitted by law. 57. BROKER'S COMMI SIMI I Lessee covenants, warrants and represents to Lessor that there was no broker instrumental in consummating this lease and that no conversations or prior negotiations were had by SCMA Lease - Page 31 Lee see with any broker concerning the renting of the Demised Premises. Lessee agrees to indemnify and hold L including attorneys, essor harmless against and from all liabilities, brokerage commissions for finders fees r reeulting from any conversation or negotiations had by Leeeee with any broker or any other person. 58. OPTIONS TO RRNRWI Lessee shall have the right, at its option, to renew the term of this Lease for three consecutive additional terms of five years each (the -Renewal Terms-), the first such Renewal Term to commence on the fifth anniversary of the Commencement Date, on all the same terms and conditions as are in force immediately prior to expiration of the initial term hereof, except that the minimum annual rent for such Renewal Term, shall be increased in accordance with Paragraph 8 hereof, provided (i) that Lessee, at the time of the exercise of each such option, and at the and of the then-current term, is not in default under the terms hereof, (ii) that Lessee shall have exercised all previous options for Renewal Terms, and (iii) that the Association shall have theretofore exercised an option to renew the Sublease for an additional term expiring not later than the Renewal Term with respect to which Lessee desires to exercise its option to renew. Lessee shall exercise its option for each such Renewal Term by giving Lessor written notice of such exercise in accordance with the notice provision of this Lease at any time at least six months prior to expiration of the then current term. If Lessee fails to exercise within the time prescribed any option which it is entitled to exercise, Lessor shall serve written notice upon Lessee of such failure, whereupon Lessee shall have fifteen (15) days from the date of receipt of such notice in which to exercise as though such act had taken place at least six months prior to expiration of the then current term. SCNA Lease - Page 32 58.1 LEABE MODIPI M MS, This Lease is intended to be a land lease, with ownership of the improvements thereon vested in Lessee during the original term of this Lease and during the term or terms of any properly exercised option(s). Upon the expiration of this Lease or the last of any properly exercised option term, whichever comes last, title to said improvements shall vest in Lessor except that Lessor may not sell, lease or rent, said improvements for use as a savings and loan or bank if Lessee at such time occupies a location for use as a banking facility within a five mile radius of the Demised Premises. Such restriction shall terminate at ouch time an Lessee fails to occupy a location for use as a banking facility within a five mile radius of the Demised Promisee, or ten years after the premises are vacated by Lessee, whichever comes first. In the event of Lessee's default this restriction as to subsequent occupancies shall not apply. SCMA Lease - Page 33 59. PROVISIONS BINDING' Except as otherwise expressly provided in this Lease, all convenants, conditions and provisions of this Lease shell be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. Each provision of this Lease to be performed by Lessee shall be construed to be both a covenant and a condition, and if there shall be more than one lessee, they shall all be bound, jointly and severally, by the provisions of this Lease. 60. ENTIRE A•R VMgNT RTC .$ This Lease, including the Exhibits, Riders and/or Addenda, if any, attached hereto, sets forth the entire agreement between xhe parties. All prior conversation or writings between the parties hereto or their representatives are merged herein and extinguished. This Lease shall not be modified except by a writing subscribed to by all parties, nor may this Lease be cancelled by Lessee or the Demised Premises surrendered except with the written consint of Lessor, unless otherwise specifically in. The thisdeLeaseLein draft form shall by Lessor submitted solely for Lessee's consideration and not for acceptance and execution. Such submission shall have no binding force or effect, shell not constitute an option for the leasing of the premises herein described, nor confer any rights or impose any obligations upon either party. The submission by Lessor of this Lease for execution by Lessee and the actual execution and delivery thereof by Lessee to Lessor shall similarly have no binding force and effect unless and until Lessor shall have executed this Lease and a duplicate original thereof shall have been delivered to Lessee. If any provision contained in any Rider and/or Addenda hereto is inconsistent with any of the printed provisions of this Lease, the provisions contained in such Rider and/or Addenda, as the case may be, shall supersede said provision of this Lease. Lessee hereby acknowledges that' (i) this Lease contains no restrictive covenants or exclusives in favor of Lessee; (ii) this Lease not be deemed or interpreted to contain, by implication or otherwise, any warranty, representation or agreement on the part of Leeeor that any department store or regional or national chain store or any other merchant shall open or remain 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 and Lessee hereby expressly waives all claims with respect thereto and acknowledges that Lessee is not relying on any such warranty, representation or agreement by Lessor either as a matter of inducement in entering into this Leese or as a condition of this Leese or as a covenant by Lessor unless such warranty, representation or agreement is expressly herein set forth. Should Lessee at any time claim rights under any restrictive covenant, exclusive covenant, covenant of key tenants, or covenant of continued occupancy, if herein expressly set forth, Lessee hereby expressly waives any such claim with respect to department stores, regional or national chain stores whose leases do not contain a use clause or who may use their premises (or may assign their leases or sublet their premises) for any lawful purposes, or any other lessees of the Shopping Center with whom leases have been entered into prior to the date of this Lease. SCHA Leese - Page 34 The captions and table of contents appearing herein are inserted only as a matter of convenience and are not intended to define, limit, construe or describe the scope or intent of any paragraph, nor in any way affect this Lease. 61. WAIVER OF LIABILITY, Anything contained in thin Lease to the contrary notwithstanding, Lessee agrees that Lessee shall look solely to the estate and property of Lessor in the land and Buildings comprising the Shopping Center of which the Demised Premises forma a part for the collection of any judgment (or other judicial process) requiring the payment of money by Lessor in the event of any default or breach by Lessor with respect to any of the terms and provisions of this Lease to be observed and/or performed by Lessor, subject, however, to the prior rights of any ground or underlying lessors or the holder of any mortgage covering the Shopping Center or any interest therein and no other assets of Lessor or any Partner in Lessor shall be subject to levy, execution or other judicial process for the satisfaction of Lessee's claim. Lessee shall not commence suit for damages or any other remedy or institute any other form of civil litigation against any Partner of Lessor whether or not such partner is a General Partner or limited partner. In the event Lessor conveys or transfers its interest in the Shopping Center or in this Lease, except as collateral security for a loan, upon such conveyance or transfer, Lessor (and in the case of any subsequent conveyances or transfers, the then grantor or transferor) shall be entirely released and relieved from all liability with respect to the performance of any covenants and obligations on the part of Lessor to be performed hereunder from and after the date of such conveyance or transfer, provided that any amounts then due and payable to Lessee by Lessor (or by the then grantor or transferor) or any other obligation then to be performed by Lessor (or by the then grantor or transferor) for Lessee under any provisions of this Lease, shall either be paid or performed by Lessor (or by the then grantor or transferor) or such payment or performance assumed by the grantee or transferee; it being intended hereby that the covenants and obligations on the part of Lessor to be performed hereunder shall, subject as aforesaid, be binding on Lessor, its successors and assigns, only during and in respect of their respective periods of ownership of an interest in the Shopping Center or in this Lease. This provision shall not be deemed, construed or interpreted to be or constitute an agreement, express or implied, between Lessor and Lessee that Lessor's interest hereunder and in the Shopping Center shall be subject to impressment of any equitable lien or otherwise. 62. RULES AND REGULATIONS9 Lessee agrees than (a) all deliveries or shipments of any kind to and from the Demised Premises, including loading and unloading of goods, shall be made only by way of locations designated by Lessor, and only at such times designated for such purpose by Lessors trailers and/or trucks servicing the Demised Premises shall remain parked in the Shopping Center only during those periods necessary to service Lessee's operations, but in no event shall such trailers or trucks remain parked in the Shopping Center overnight or beyond the closing hour of the Shopping Center; (b) all garbage and refuse shall be stored in the type of SCNA Lease - Page 35 - `r. container Specified by Lessor and shall be placed at the location within the Demised Premises designated by Lessor, for collection (at times specified by Lessor) by contractors, an may from time to time, be designated by Lessor; Lessee Shall pay for the cost of removal of such garbage and refuse. In lieu and instead of the foregoing provisions of this subdivision (b), Lessor, at its option, may purchase or lease a garbage compactor for the use of leeeees end occupants of the Shopping Center. If Lessor makes available rubbish and garbage facilities or purchases or leases such garbage compactor for the use of lose eee in the Shopping Center, then Lessee agrees to use the same for the disposal of its garbage and refuse to the exclusion of all other garbage collection companies, Lessee shall pay monthly, in advance, as additional rent, the charges therefor, based upon Lessor's estimate of the amount of the refuse and garbage generated and the frequency of use by Lessee. Leeeee shall cause its garbage and refuse to be taken to such garbage compactor within the Shopping Center) and it is understood and agreed that Lessee's monthly charge as aforementioned will not include pickup service. The aforementioned monthly charge as estimated by Lessor shall be adjusted on an annual basis after the expiration of each lease year. Lessee she].1 store soiled or dirty linen in approved fire rating organization metal containers with self-closing fusible link coverer (c) no radio, television, phonograph or other similar devices, or aerial attached thereto (inside or outside the Demised Promisee) shall be installed without first obtaining, in each instance, Lessor's written consent, and if such consent be given, no such device shall be used in a manner so as to be heard or seen outside of the Demised Premises; (d) Lessee shall keep the areas immediately adjoining the Demised Premises clean and free from dirt and rubbish, and Leases shall not place, suffer or permit any obstructions or merchandise in such areas; (e) Lessee Shall not use the common areas for business or promotional purposes; (f) Lessee and Lessee's employees shall park their care only in those portions of the parking areas, if any, designated for that purpose by Lessor; ouch parking areas may, at Lessor's discretion, be adjacent to the Shopping Center or separated therefrom by intervening streets. Lessee shall furnish Lessor with the automobile license numbers of the automobiles used by Lessee and Lessee's employees within five (5) days after Leeeee opens for business in the Demised Premises and Lessee shall thereafter notify Lessor of any changes within (5) days after such changes occur. If Lessee or Lessee's employees shall fail to park their care in such designated parking areas, then Lessor may charge Lessee, as and for liquidated damages, Ten ($10.00) Doll era per day for each day or partial day for each car parked in any areas other than those designated; and Leases hereby authorizes Lessor to remove from the Shopping Center any of Lessee's care or care belonging to Lessee's employees and/or to attach violation stickers or notices to such care, and Lessee hereby waives and releases Lessor and hereby indemnifies and agrees to hold Lessor harmless from all claims, liabilities, costa and expenses which may result or arise therefrom; (g) the plumbing facilities within or serving the Demised Premises shall not be used for any purposes other than for which they were constructed, and no foreign substances of any kind shall be thrown SCMA Lease - Page 36 therein; (h) Lessee shall employ, at Lesese's expense, a peat extermination contractor to service the Demised Premises at such intervals as Lessor may require; (L) Lessee shall not burn trash or garbage in or about the Demised Premises or the Shopping Center; (j) Lessee shall not an suffer the sidewalks in sfront , of decorations the rear of the Demised Premises or on or upon any of the parking or other common areas; (k) Lessee shall not use, permit or suffer the use of any portion of the Demised Premises as living, sleeping or lodging quarters; (1) all mechanical equipment and machinery will be kept free of noise and vibrations which may be transmitted to any part of the walls of the Building In which the Demised Premises are located or beyond the confines of the Demised Premises are located or beyond the confines of the Demised Premises; (m) no odors or vapors will be permitted or caused to emanate from the Demised Premises; (n) no live animals other than in a pet shop will be kept on or within the Destined Premises; (o) Lessee will not display, paint or place or cause to be displayed, painted or placed any handbills, bumper e tickers or other advertising or promotional materials or devices on any vehicles parked in the parking areas of the Shopping Center, whether belonging to Lessee or to Leeeee's agent or to any other person; (p) Lessor may reasonably amend or add new rules and regulations for the use and care of the Demised Premises, the Building and the common areas; provided, however, that all such new rules and regulations shall be uniformly enforced against all occupants of the Shopping Center. Notice of such amendments or new rules and regulations will be given to Lessee. 63. CORPO T- ..c .I If Lessee in a corporation, the persons executing this Lease on behalf of Lessee hereby warrant and represent that lessee is a duly incorporated or duly qualified (if foreign) corporation and is authorized to do business in the Commonwealth of Pennsylvania; and that the person(s) executing this Lease an behalf of Lessee is an officer or are officers of such Lessee, and that he or they as such officers are duly authorized to sign and execute this Lease for and on behalf of such corporation. IN WITNESS WHEREOF, the parties hereto have respectively signed and sealed this Lease as of the day and year set forth in Article 1 hereof. LESSORt7 Shuman-Carlisle Mall Associates u By,?', Witness Don Shuman, General Partner LESSEE D?? (By SCMA Lease - Page 37 EXHIBIT "A• kusg" All that certain tract or parcel of land together with improvements thereon, situate in the City of Carlisle, County of Cumberland, Commonwealth of Pennsylvania, bounded and described as follows to wits Beginning at a point, said point being the southwest corner of South Hanover Street and Noble Boulevard; Thence along the western line South of South Hanover street :long 40' Neat a distance of 339.34 feet to a point ; Thence along the right of way line of Ramp ^I" (State Highway L.R. 1799-4) North 70 degrees 20' West a distance of 16.0 feet to a point; Thence by a curve to the right having a radius of 120.0 feet for an arc length of 162.66 feet to a point; Thence along same South 88 degrees 20' West a distance of 164.47 feet to a point; Thence along same by a curve to the left having a radius of 304.5 feet for an are length of 171.13 feet to a point; Thence along same South 56 degrees 08' West a distance of 611.55 feet to a point; Thence along same by a curve to the right having a radius of 460.0 feet for an arc length of 283.67 feet to a point; Thence along same South 01 degrees 28' West a distance of 16.0 feet to a point; r Thence along the northern right of way line of State Highway L.R. 1799-4 North 88 degrees 32' Welt distance a of 562.37 feet to a point; Thence along lands of Elwood Company, Inc., North O1 degrees 28' East 353.18 feet to a point; Thence along lands of the Elwood Company, Inc., North 22 degrees 42' East 469.09 feet continuing to a point, thence along lands of the Elwood Company, Inc., North 10 degrees 53' East 428.54 feet to a point along the southern line of Noble Boulevard. Thence along the southern line of Noble Boulevard South 79 degrees 07' East 170.02 feet to a point; Thence along the southern line of Noble Boulevard South 79 degrees 11' East 29.98 feet to a point; Thence along the southern line of Noble Boulevard South 79 degrees 11' East 1414.35 feet to the place of beginning. CONTAINING 33.66 Acres, more or lose. PARCEL IIt BEGINNING at a point at the intersection of the East side of Ridge Street and the South aide of Noble Boulevard; Thence by the South aide of Noble Boulevard South 79 degrees 07 minutes East a distance of 160.0 feet to a point at lands now or formerly Jenks, Inc.; Thence by same South 10 degrees 53 minutes West a distance of 428.54 feet to a point; Thence by same South 22 degrees 42 minutes West a distance of 469.09 feet to a point; Thence by same South 01 degree 28 minutes want a distance of 353.18 feet to a point on the right-of-way line of I-81; Thence by same North 88 degrees 32 minutes West a distance of 160 feet to a point on the East side of Ridge Street; Thence by same North 01 degree 28 minutes East a distance of 269.34 feet to a point; Thence by same and a curve to the right having a radius of 607.27 feet an arc length of 225.05 feet to a point; Thence by same North 22 degrees 42 minutes East a distance of 279.69 feet to a point; Thence by same and a curve to the left having a radius of 860 feet an arc length of 177.37 feet to a point; Thence by same North 10 degrees 53 minutes East a distance of 322.98 feet to a point on the South side of Noble Boulevard, the place of beginning. CONTAINING 4.63 acres. h h ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Plaintiff VS. No. ZAMIAS SERVICES INC. and PNC BANK Defendants AFFIDAVIT IN ACTION FOR INJUNCTION TO PREVENT VIOLATION OF THE TERMS OF A LEASE COMMONWEALTH OF PENNSYLVANIA COUNTY OF YORK Robert W. Pullo, being duly sworn and according to law, deposes and says: 1. I am the Chief Executive Officer of Y-F Service Corp. 2. 1 have read the Complaint signed by Benjamin F. Riggs, Jr. in the above-titled action, and that the facts therein contained are to my knowledge true and correct. 3. The excerpts from the Lease in question contained in the Complaint are true and correct. 4. Defendants Zamias Services Inc.'s intends to allow Defendant PNC Bank Corp. to occupy the former branch location of York Federal Savings and Loan Association located at M.J. Mall, Carlisle, Pennsylvania 17013, and is in violation of Paragraph 58.1 of the Lease between the parties and will cause irreparable loss and damage to Y-F Service Corp., as York Federal's new branch location is located within sev I hundred yards of its former branch location and Defendant PN?B s presence will cause irreparable business damage to Y- F Servicq,2?orp. 1_`112 W. Pullo, CEO ? P a 4 ??r c•: Ci ?a a P T m Y-f SERVICE CORP. VS. Plaintiff ZAMIAS SERVICES INC. and PNC DANK Defendants ORDER GRANTING PRELIMINARY INJUNCTION Upon consideration of Plaintiffs Petition for Preliminary Injunction and the Complaint; and it appearing from the Complaint that the Plaintiff will suffer immediate, substantial and irreparable harm before a hearing may be held; it is this day of August, 1999, ORDERED that a Preliminary Injunction be and hereby is issued, against Defendants Zamias Services, Inc. and PNC Dank, restraining and enjoining them and anyone acting on their behalf, from entering or using the former York Federal branch located at the M.J. Carlisle Mall. Judge cc: Y-F Service Corp. Zamias Services, Inc. PNC Bank IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. VS. Plaintiff No. 99 5 ?T ZAMIAS SERVICES INC. and PNC BANK Defendants PETITION FOR PRELIMINARY INJUNCTION AND NOW, comes Plaintiff Y-F Service Corp., by and through its attorney, Benjamin F. Riggs, Jr., and petitions this Court for a Preliminary Injunction. The grounds for this petition are more particularly set forth in the accompanying Complaint. WHEREFORE, for the foregoing reasons, Plaintiff requests this Honorable Court for a Preliminary Injunction in its favor to preserve the status quo pending resolution of the matters stated in its Complaint. A v P"" J Benjamin F. iggs, Jr. Attorney for Plaintiff Y-F Service Corp. 101 South George Street York, PA 17401 Telephone: (717) 849-2748 Attorney I.D. No. 72030 >. ?-- ?, l,' U,i ("` •. 1;,- T. ?'_ C_, -: L. 't Cl '-J L l ?' ??, V? ?1 ??: n n, ?) _. U IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Plaintiff VS. No. ZAMIAS SERVICES INC. and PNC BANK Defendants PETITION FOR PRELIMINARY INJUNCTION AND NOW, comes Plaintiff Y-F Service Corp., by and through its attorney, Benjamin F. Riggs, Jr., and petitions this Court for a Preliminary Injunction. The grounds for this petition are more particularly set forth in the accompanying Complaint. WHEREFORE, for the foregoing reasons, Plaintiff requests this Honorable Court for a Preliminary Injunction in its favor to preserve the status quo pending resolution of the matters stated in its Complaint. I.D. ,/ Benjamin F. 'ggs, Jr Attorney for Plaintiff Y-F Service Corp. 101 South George Street York, PA 17401 Telephone: (717) 849-2748 Attomev I.D. No. 72030 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Plaintiff Vs. No. ZAMIAS SERVICES INC. and PNC BANK Defendants ORDER GRANTING PRELIMINARY INJUNCTION Upon consideration of Plaintiffs Petition for Preliminary Injunction and the Complaint; and it appearing from the Complaint that the Plaintiff will suffer immediate, substantial and irreparable harm before a hearing may be held; it is this day of August, 1999, ORDERED that a Preliminary Injunction be and hereby is issued, against Defendants Zamias Services, Inc. and PNC Bank, restraining and enjoining them and anyone acting on their behalf, from entering or using the former York Federal branch located at the M.J. Carlisle Mall. Judge cc: Y-F Service Corp. Zamias Services, Inc. PNC Bank Plaintiff No. 99-5309-Civil VS. ZAMIAS SERVICES, INC. and PNC BANK Defendants ORDER In consideration of Movant York Federal Savings and Loan Association's Motion for Continuance, and any opposition thereto, if any, it is this 9* day of September, 1999, ORDERED that the hearing scheduled for September 8, 1999 at a C;?4aabf2 10:00 a.m. in the above-captioned case is hereby continued to the date of 6ep1eF"Ner 13 , 1999 at OZ : ad /P.M. (2Judge lJ weS?E D?K? d//t . cc: Benjamin F. Riggs, Jr Attorney for Movant York Federal Savings and Loan Association 101 South George Street York, PA 17401 9I9 lqi9. _?8 e. 1 Y-F SERVICE CORP. Plaintiff No. 99-5309-Civil VS. ZAMIAS SERVICES, INC. and PNC BANK Defendants MOTION FOR CONTINUANCE Y-F Service Corp., by and through its attorney, Benjamin F. Riggs, Jr., moves this Court for continuance in the above-captioned case and states as follows: 1. Per this Court's Order dated September 2, 1999, this Court scheduled a hearing to consider Plaintiffs Motion for Preliminary Injunction and Complaint before this Court in the above-captioned proceeding. 2. The Court has scheduled a hearing for September 8, 1999 at 10:00 a.m. 3. Robert W. Pullo, Chief Executive Officer of Y-F Service Corp., is unavailable to testify at the hearing scheduled for September 8, 1999 at 10:00 a.m. 4. The undersigned counsel requests this Court to reschedule the hearing in this matter subsequent to September 8, 1999, the date upon which Mr. Pullo will be able to attend a hearing on this matter. WHEREFORE, Y-F Service Corp. requests this Honorable Court to continue the hearing in the above-captioned matter to a date certain subsequent to September 8, 1999; and such other and further relief that this Court deems appropriate. Respectfully submitted, Benja . iggs, Jr. Attorney for Plaintiff York Federal Savings and Loan Association 101 South George Street York, PA 17401 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Y-F SERVICE CORP. Plaintiff No. 99-5309-Civil Va. ZAMIAS SERVICES, INC. and PNC BANK Defendants CERTIFICATE OF SERVICE I, Benjamin F. Riggs, Jr., Counsel for York Federal Savings and Loan Association, 101 S. George Street, York, Pennsylvania 17401, certify that I am and at all times hereinafter mentioned was more than 18 years of age; and that on the _2A day of September, 1999, 1 served a copy of the within Motion for Continuance and Proposed Order by first class mail on: Zamias Services, Inc. PNC Bank Attn: Sam Zamias, Chairman Attn: Thomas O'Brien 300 Market Street USX Tower Johnstown, PA 15901 600 Grant Street Pittsburgh, PA 15219 I certify that under penalty of perjury that the foregoin true and correct. Executed on: September 1999 Benjamin F. Riggs, Jr. Attorney for Creditor York Federal Savings and Loan Association 101 S. George Street York, PA 17401 Telephone: (717) 849-2748 C. _ ' L ? ?_ ?.f . It I ^I 1. Ul ..? Y-F SERVICE CORP. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ZAMIAS SERVICES, INC. : NO. 99-5309 CIVIL TERM and PNC BANK AND NOW, this 2"d day of SEPTEMBER, 1999, a hearing on Plaintiffs Petition for a Preliminary Injunction is scheduled for Wednesday, September 8, 1999, at 10:00 a.m. in Courtroom # 5 of the Cumberland County Courthouse, Carlisle, Pa. 17013. Plaintiffs request for an exparte preliminary injunction is DENIED. By the Edward E. Guido, J. Benjamin F. Rigg, Jr., Esquire 101 South George Street York, Pa. 17401 °9 Sc.' .. ;.ii i I : I a m { ?' ??? ?19 ??o ^,.? SERVICE CORP. vs. ZAMIAS SERVICES INC. and PNC BANK Plaintiff Defendants No. -29. 7- ORDER In consideration of Plaintiffs Complaint in Proceeding to Enjoin the Terms of a Lease, it is this day of 1999, ORDERED that Defendant Zamias Services Inc. is enjoined and restrained from allowing Defendant PNC Bank Corp. from occupying or in any way using the former bank facilities of Y- F Service Corp. located at the M.J. Mall in Carlisle, Pennsylvania 17013. Judge IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Plaintiff vs. No. 94. 53o9 ? T_?. ZAMIAS SERVICES INC. and PNC BANK Defendants ORDER In consideration of Plaintiff's Complaint in Proceeding to Enjoin the Terms of a Lease, it is this day of 1999, ORDERED that Defendant Zamias Services Inc. is enjoined and restrained from allowing Defendant PNC Bank Corp. from occupying or in any way using the former bank facilities of Y- F Service Corp. located at the M.J. Mall in Carlisle, Pennsylvania 17013. Judge IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Plaintiff VS. No. 99-S34)g n' l lc ZAMIAS SERVICES INC. and PNC BANK Defendants ORDER In consideration of Plaintiffs Complaint in Proceeding to Enjoin the Terms of a Lease, it is this day of 1999, ORDERED that Defendant Zamias Services Inc. is enjoined and restrained from allowing Defendant PNC Bank Corp. from occupying or in any way using the former bank facilities of Y- F Service Corp. located at the M.J. Mall in Carlisle, Pennsylvania 17013. Judge IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Plaintiff vs. No. 99-r309 ,- 1 T ZAMIAS SERVICES INC. and PNC BANK Defendants ORDER In consideration of Plaintiffs Complaint in Proceeding to Enjoin the Terms of a Lease, it is this day of 1999, ORDERED that Defendant Zamias Services Inc. is enjoined and restrained from allowing Defendant PNC Bank Corp. from occupying or in any way using the former bank facilities of Y- F Service Corp. located at the M.J. Mall in Carlisle, Pennsylvania 17013. Judge IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Vs. Plaintiff No. 49. 5,309 e ;,? T-1" ZAMIAS SERVICES INC. and PNC BANK ORDER In consideration of Plaintiff's Complaint in Proceeding to Enjoin the Terms of a Lease, it is this day of 1999, ORDERED that Defendant Zamias Services Inc. is enjoined and restrained from allowing Defendant PNC Bank Corp. from occupying or in any way using the former bank facilities of Y- F Service Corp. located at the M.J. Mall in Carlisle, Pennsylvania 17013. Defendants Judge M M 0 C O m U O N N Q d N 0 LS N WC N ? lT Cl) N .C O O LL O r i N LL a C 'L . co } , } w 0 x? 'o rn ?U= ce) O o o 0 NUr? o??a ozx0? L?LN E 0 t aUU)u t.: p i, j , AUG 3 0 1999\ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Vs. ZAMIAS SERVICES INC. and PNC BANK Defendants No. 9H 5" 09 ORDER GRANTING PRELIMINARY INJUNCTION Upon consideration of Plaintiffs Petition for Preliminary Injunction and the Complaint; and it appearing from the Complaint that the Plaintiff will suffer immediate, substantial and irreparable harm before a hearing may be held; it is this day of August, 1999, ORDERED that a Preliminary Injunction be and hereby is issued, against Defendants Zamias Services, Inc. and PNC Bank, restraining and enjoining them and anyone acting on their behalf, from entering or using the former York Federal branch located at the M.J. Carlisle Mall. Judge Plaintiff cc: Y-F Service Corp. Zamias Services, Inc. PNC Bank AUG 3 0 199P IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. vs. Plaintiff No. 99- 5-- b ZAMIAS SERVICES INC. and PNC BANK Defendants ORDER GRANTING PRELIMINARY INJUNCTION Upon consideration of Plaintiffs Petition for Preliminary Injunction and the Complaint; and it appearing from the Complaint that the Plaintiff will suffer immediate, substantial and irreparable harm before a hearing may be held; it is this day of August, 1999, ORDERED that a Preliminary Injunction be and hereby is issued, against Defendants Zamias Services, Inc. and PNC Bank, restraining and enjoining them and anyone acting on their behalf, from entering or using the former York Federal branch located at the M.J. Carlisle Mall. Judge cc: Y-F Service Corp. Zamias Services, Inc. PNC Bank AUG 3 0 1991 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Vs. Plaintiff No. 99- 63o9 11;,,( IA' ZAMIAS SERVICES INC. and PNC BANK Defendants ORDER GRANTING PRELIMINARY INJUNCTION Upon consideration of Plaintiff's Petition for Preliminary Injunction and the Complaint; and it appearing from the Complaint that the Plaintiff will suffer immediate, substantial and irreparable harm before a hearing may be held; it is this day of August, 1999, ORDERED that a Preliminary Injunction be and hereby is issued, against Defendants Zamias Services, Inc. and PNC Bank, restraining and enjoining them and anyone acting on their behalf, from entering or using the former York Federal branch located at the M.J. Carlisle Mall. Judge cc: Y-F Service Corp. Zamias Services, Inc. PNC Bank AUG 3 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Vs. ZAMIAS SERVICES INC. and PNC BANK Plaintiff No. Defendants ORDER GRANTING PRELIMINARY INJUNCTION Upon consideration of Plaintiffs Petition for Preliminary Injunction and the Complaint; and it appearing from the Complaint that the Plaintiff will suffer immediate, substantial and irreparable harm before a hearing may be held; it is this day of August, 1999, ORDERED that a Preliminary Injunction be and hereby is issued, against Defendants Zamias Services, Inc. and PNC Bank, restraining and enjoining them and anyone acting on their behalf, from entering or using the former York Federal branch located at the M.J. Carlisle Mall. Judge cc: Y-F Service Corp. Zamias Services, Inc. PNC Bank IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Plaintiff vs. No. ZAMIAS SERVICES INC. and PNC BANK Defendants PETITION FOR PRELIMINARY INJUNCTION AND NOW, comes Plaintiff Y-F Service Corp., by and through its attorney, Benjamin F. Riggs, Jr., and petitions this Court for a Preliminary Injunction. The grounds for this petition are more particularly set forth in the accompanying Complaint. WHEREFORE, for the foregoing reasons, Plaintiff requests this Honorable Court for a Preliminary Injunction in its favor to preserve the sm quo pending resolution of the matters stated in its Complaint. A.jLj Benjamin F. 'ggs, Jr. Attorney for Plaintiff Y-F Service Corp. 101 South George Street York, PA 17401 Telephone: (717) 849-2748 Attorney I.D. No. 72030 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP. Plaintiff VS. No. ZAMIAS SERVICES INC. and PNC BANK Defendants ORDER GRANTING PRELIMINARY INJUNCTION Upon consideration of Plaintiffs Petition for Preliminary Injunction and the Complaint; and it appearing from the Complaint that the Plaintiff will suffer immediate, substantial and irreparable harm before a hearing may be held; it is this day of August, 1999, ORDERED that a Preliminary Injunction be and hereby is issued, against Defendants Zamias Services, Inc. and PNC Bank, restraining and enjoining them and anyone acting on their behalf, from entering or using the former York Federal branch located at the M.J. Carlisle Mall. Judge cc: Y-F Service Corp. Zamias Services, Inc. PNC Bank ? l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP., Plaintiff V. No. 99-5309 ZAMIAS SERVICES, INC. Civil Term and PNC BANK Defendants Please enter the appearance of the undersigned as counsel for Defendant "PNC Bank" in the above-captioned action. Respectfully submitted, oz, Dss, / Esquire I.D. No.: 47466 REED SMITH SHAW & McCLAY I.LP 213 Market Street, 9th Floo. P.O. Box 11844 Harrisburg, Pennsylvania 17108 (717)257-3047 Counsel for Defendant "PNC Bank" A I hereby certify that on this 9th day of September, 1999, the attached Entry of Appearance was served by first-class United States Mail, postage prepaid, upon the following: Benjamin F. Riggs, Jr., Esquire York Federal Savings and Loan Association 202 South George Street York, PA 17401 Zamias Services, Inc. ATTN. Sam Zamias 300 Market Street Johnstown, PA 15901 ji Dino Ross ;?? ?- r- . ?;: ,,, ' .:: ??, ;, , ? _: . ; ,. ?. : _ ? Y-F SERVICE CORP., Plaintiff, V. ZAMIAS SERVICES, INC. and PNC BANK Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 99-5309 Civil Term PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned as counsel for Defendant Zamias Services, Inc. in the above-captioned action. Respectfully Submitted, RHOADS & 1SINON LLP By: Timothy J. Nieman Attorney I.D. 66024 Kevin M. Gold Attorney I.D. 70265 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Zamias Services, Inc. Date: September 23, 1999 IWO i CERTIFICATE OF SERVICE 1 hereby certify that on this 17_day of ?? ???? 1999, the foregoing Praecipe for Entry of Appearance was served via first class mail upon the persons listed below: Benjamin F. Riggs, Jr., Esq. Y-F Service Corp. 101 South George Street York, PA 17401 (Attorney for Plaintiff) Dino A. Ross, Esq. Reed Smith Shaw & McClay LLP 213 Market Street, 9' Floor P.O. Box 11844 Harrisburg, PA 17108 (Attorney for Defendant PNC Bank) V L Dara D , Boozel > al c - N "ry L- CL 1- V: c :? Y-F SERVICE CORP., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ZAMIS SERVICES, INC., : and PNC BANK, Defendants NO. 99-5309 CIVIL TERM ORDER OF COURT AND NOW, this 1st day of October, 1999, upon consideration of Movant York Federal Savings and Loan Association's Motion for Continuance, the hearing previously scheduled in this matter for October 13, 1999, at 2:00 p.m., is rescheduled to 3:00 p.m. on the same date, in Courtroom No. I, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, J? esley Oler,_ . Banjamin F. Riggs, Jr., Esq. 101 south George Street York, PA 17401 Attorney for Movant York Federal Savings and Loan Association Dino A. Ross, Esq. 213 Market Street Harrisburg, PA 17101 Timothy J. Nieman, Esq. I South Market Square Harrisburg, PA 17101 J :rc u r+.J Ic `1f 9 4 r'; 7P - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORR, Plaintiff V. No. 99-5309 ZAMIAS SERVICES, INC. Civil Term and PNC BANK Defendants PRELIMINARY OBJECTIONS TO COMPLAINT TO ENJOIN VIOLATION OF LEASE Defendant PNC Bank, National Association (incorrectly identified by Plaintiff as "PNC Bank") (hereinafter ?NC!"), by and through its undersigned counsel, files the following Preliminary Objections To Complaint To Enjoin Violation Of Lease. I. Failure To Join A Necessary Party 1. Plaintiff Y-F Service Corp. ("Plaintiff') alleges that on or about March 8, 1995, it entered into a Shopping Center Lease Agreement with Sun Life Insurance Company of America ("Sun Life"), which modified a lease dated July 17, 1989, by and between Shuman- Carlisle Mall Associates and Plaintiff (hereinafter the "Lease"). So Complaint, 14. 2. Plaintiff further alleges that the Lease dealt with an outparcel in the MJ Carlisle Mall containing a York Federal Bank branch (the "Property"). See Complaint, ¶ 4. 3. Plaintiff alleges that Sun Life is the owner of the Property. $gg Complaint, ¶4. 4. The basis for Plaintiffs request for injunctive relief is an alleged violation of paragraph 58.1 of the Lease. Specifically, Plaintiff contends that Zamias intends to lease the Property to PNC in violation of paragraph 58.1 of the Lease. S= Complaint, ¶¶ 7,8. 5. The only parties to the Lease are Plaintiff and Sun Life. Neither Defendants Zamias Services, Inc. nor PNC are parties to the Lease. 6. Because Plaintiff seeks the enforcement of a provision contained in the Lease between it and Sun Life, it is entirely improper for this Court to adjudicate the merits of Plaintiffs claims without Sun Life's participation. 7. Sun Life is not a party to this action. 8. Because Plaintiff failed to join Sun Life, a necessary party to this action, Plaintiffs Complaint should be dismissed. Wherefore, PNC respectfully requests that its Preliminary Objections be sustained and that Plaintiffs Complaint be dismissed with prejudice. H. Failure To State A Legally Sufficient Claim 9. The averments of paragraphs 1 through 8 above are incorporated by this reference as if set forth in full. 10. Plaintiff is seeking to enjoin the alleged violation of the Lease between it and Sun Life. 11. Specifically, Plaintiff alleges that in violation of paragraph 58.1 of the Lease, Zamias intends to allow PNC to occupy the Property. 12. It is clear from the face of the Lease that PNC is not a party to the Lease. -2- 13. Plaintiff has not alleged that PNC is a party to the Lease or has entered into a contract or agreement to lease the Property. 14. The only factual allegations against PNC are that Zamias "intends to allow PNC to occupy the Property" and "Zamias has every intention of leasing the Property to PNC." 5= Complaint, IT 7-8. Significantly, Plaintiff has requested only that Zamias be enjoined from violating the Lease. Plaintiff has not requested any injunctive relief against PNC. 15. PNC cannot violate the terms of the Lease to which it is not a party nor can PNC be enjoined from violating a Lease to which it is not a party. 16. Plaintiff has failed to state any cognizable cause of action against PNC. WHEREFORE, it is respectfully requested that Plaintiffs Complaint against PNC be dismissed with prejudice for failure to state a legally sufficient claim. Respectfully submitted, Di Ross, Esquire I.D. No.: 47466 REED SMITH SHAW & McCLAY LLP 213 Market Street, 9th Floor P.O. Box 11844 Harrisburg, Pennsylvania 17108 (717)257-3047 Counsel for Defendant PNC Bank, National Association -3- I hereby certify that on this 5th day of October, 1999, the foregoing was served by first-class United States Mail, postage prepaid, upon the following: Benjamin F. Riggs, Jr., Esquire York Federal Savings and Loan Association 202 South George Street York, PA 17401 Timothy J. Niemann, Esquire Rhoads & Sinon LLP One South Market Square, 12`h Floor P.O. Box 1146 Harrisburg, PA 17108-1146 J Y _ Dino A. Ross Cf, cl :? Plaintiff, V. 'LAMIAS SERVICES, INC. and PNC BANK Defendants OF CUMBERLAND COUNTY, PENNSYLVANIA No. 99-5309 Civil Term ANSWER TO COMPLAINT TO ENJOIN VIOLATION OF LEASE NOW COMES, Defendant, %antias Services, Inc. by and through its attorneys Rhoads & Sinon, LLP and tiles the within Answer to Complaint to Enjoin Violation of Lease as follows: I. Admitted upon information and belief. 2. Admitted. 3. Admitted upon information and beliel'. 4. Denied. The Agreement and Lease are written documents and, as such, they speak for themselves. After reasonable investigation, 7..amias is without knowledge or information sufficient to form a belief as to the truth of the remaining averments and they are therefore denied. 5. Denied. The Lease and Agreement are written documents and, as such, they speak for themselves. 6. Admitted in part and denied in part. It is admitted that Y-F Services, Inc. has learned that I'NC may occupy the Property. If is denied, however, that Zamias intends to sell. lease or rent the Property to PNC, as those terms are used in the Lease. q »un 1 7. Denied. The averments contained in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent the averments are deemed factual in nature, it is specifically denied that Zamias is in violation of the terms of the Lease. 8. Denied. The averments contained in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent the averments are deemed factual in nature, it is specifically denied that Zamias has every intention of leasing the Property to PNC in violation of the spirit of the Lease. To the contrary, Zamias does not intend to sell, lease or rent the Property to PNC. 9. Denied. The averments contained in this paragraph constitute conclusions of law to which no responsive pleading is required. To the extent the averments are deemed factual in nature, it is specifically denied that Zamias is in violation of the terms of the Lease and that Plaintiff will suffer manifest and irreparable damage. To the contrary, Zamias is not in violation of the Lease and Plaintiffs will suffer no harm or damage. WHEREFORE, Answering Defendant Zamias Services, Inc. respectfully requests that this Honorable Court deny Plaintiffs request for an injunction and dismiss the Complaint to Enjoin Violation of Lease in its entirety with prejudice and without cost to Answering Defendant. NEW MATTER 10. Zamias incorporates by reference the foregoing responses to paragraphs 1-9 as if set forth in full. I l . Plaintiff s claims are barred by the doctrines of waiver, estoppel and laches. 12. Zamias, as the management company for the outparcel which is the subject of the instant Complaint to Enjoin Violation of Lease, is not the real party in interest. Additionally, Zamias is not a party to the Lease. 13. The restrictive covenant that Zamias is alleged to be in violation of is not effective and has lapsed by its own terms. 14. The conditions for which the restrictive covenant apply, assuming the covenant is operative, have not been met. 15. Answering Defendant is not selling, leasing or renting the outparcel to PNC. 16. Plaintiff's have failed to establish, nor does it possess, a clear right to relief, an immediate need for relief and an irreparable injury which are each required for injunctive relief. IT Plaintiffs injury, if any, is compensable at law through money damages. 18. Plaintiff fails to state a claim upon which relief can be granted. WHEREFORE, Zamias Services, Inc. respectfully requests that this Honorable Court deny Plaintiffs request for an injunction and dismiss the Complaint to Enjoin Violation of Lease in its entirety with prejudice and without cost to Zamias Services, Inc. RHOADS & SINON LLP By. lei 1.4,-- Timothy J. Nieman Kevin M. Gold One South Market Square P. 0. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Zamias Services, Inc. CERTIFICATE OF SERVICE I hereby certify that on this 7°i day of October, the foregoing Answer to Complaint to Enjoin Violation of Lease was served via first class mail upon the persons listed below: Benjamin F. Riggs, Jr., Esq. Y-F Service Corp. 101 South George Street York, PA 17401 (Attorney for Plaintiff) Dino A. Ross, Esq. Reed Smith Shaw & McClay LLP 213 Market Street, 9'h Floor P.O. Box 11844 Harrisburg, PA 17108 (Attorney for Defendant PNC Bank) VERIFICATION Sam Zamias, deposes and says, subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing Answer to Complaint to Enjoin Violation of Lease are true and correct to the best of his knowledge, information and belief. Date: 9'd 9 99 ?(? C-V Sam Zamias «, j ?.. r „J. Iii( 1 !'? l?? ). 1..; 1 \ i 4. i t? -. / F... ?. ?I Q ? _I ?_) (?? ? L C/1 ? G OCT 12 IM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Y-F SERVICE CORP., Plaintiff V. No. 99-5309 ZAMIAS SERVICES, INC. Civil Term and PNC BANK Defendants Plaintiff Y-F Service Corp., Defendant Zamias Services, Inc. and Defendant PNC Bank, National Association (incorrectly identified and designated by Plaintiff as "PNC Bank"), by and through their respective undersigned counsel, and pursuant to Pa.R.Civ.P. No. 229(b), hereby agree and stipulate that the above-captioned action is discontinued with prejudice as to Defendant PNC Bank, National Association (incorrectly identified and designated by Plaintiff as "PNC Bank"). This Stipulation may be executed by the parties in counterparts. A. Ross, Esquire I.D. No.: 47466 REED SMITH SHAW & McCLAY LLP 213 Market Street, 9th Floor P.O. Box 11844 Harrisburg, Pennsylvania 17108 Counsel for Defendant PNC Bank, National Association ?r Benjamin F Riggs, r., squire York Federal Savings and Loan Association 101 South George Street York, PA 17401 Counsel for Plaintiff Y-F Service Corp. Timothy J. Niemann, Esquire Rhoads & Sinon LLP One South Market Square, 12`h Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Counsel for Defendant Zamias Services, Inc. s A U 00 cy- Y-F SERVICE CORP., Plaintiff V. ZAMIAS SERVICES, INC., and SUN LIFE INSURANCE COMPANY OF AMERICA, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 99-5309 CIVIL TERM ORDER OF COURT AND NOW, this 13th day of October, 1999, c upon consideration of the Petition for Preliminary Injunction filed by Y-F Service Corporation, Plaintiff, and upon consideration of the Complaint in the above-captioned matter filed by Y-F Service Corporation, and pursuant to an agreement reached in open court between the Plaintiff and Defendant Zamias Services, Inc., and Defendant Sun Life Insurance Company of America, and the parties having resolved both the issues raised in the Petition for Preliminary Injunction and in the Complaint, which agreement has been described in general terms on the record in open court on today's date and will be formalized and submitted to the Court with a proposed order for signature, the record is declared closed, and the matter is taken under advisement. c ,- J By the Court, J Wesley O1 J iA Benjamin F. Riggs, Jr., Esquire 101 South George Street York, PA 17401 For the Plaintiff Kevin M. Gold, Esquire Timothy J. Niehman, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 For Defendants Zamias Services and Sun Life Joseph A. Anthony, Esquire 300 Market Street Johnstown, PA 15901 For Defendant Zamias Services, Inc. Dino A. Ross, Esquire 213 Market Street P.O. Box 11844 Harrisburg, PA 17108-1844 For Defendant PNC Bank wcy rp.a.fud. 0/,41f. 0 A -P SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-05309 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND Y - F SERVCE CORPORATION VS. ZAMIAS SERVICES INC 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: ZAMIAS SERVICES INC ATTN: SAM ZAMIAS but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of CAMBRIA County, Pennsylvania. to serve the within COMPLAINT TO ENJOIN On October 4th, 1999 , this office was in receipt of the attached return from CAMBRIA County, Pennsylvania. Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 8.00 Dep. Cambria Cc 35.26 Sworn and subscribed to before me this ,104= day of u'C CGf ..? 19gq A. D. ??VratfonoC ar ? SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-05309 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND Y - F SERVCE CORPORATION VS. ZAMIAS SERVICES INC 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: PNC BANK CORPORATION ATTN: THOMAS O'BRIEN but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of ALLEGHENY County, Pennsylvania. to serve the within COMPLAINT TO ENJOIN On October 4th, 1999 , this office was in receipt of the attached return from ALGHENY Count , Pennsylvania. Sheriff's Costs: o a e s: Docketing 6.00 Out of County 9.00 Surcharge 8.00 as line, eri Dep. Allegheny Cc 31.00 ZK;/EDE uu 1L SAVINGS & LOAN 19 Sworn and subscribed to before me this ,]e day of QJI-? 19qlct A.D. ro on ary '?"? In The Court of Common Pleas of Cumberland County, Pennsylvania Y-F Service Corpp VS. Zamias Services, Inc., at Serve: Zamias Service, Inc. Now, 9/7/99 al. No. 99-5309 Civil 19_, 1, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Cambria County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, Sept 15 , 19 99 at 11:00 o'clock_ A M. served the within Complaint upon Zamias Services Inc. at 300 Market St. Johnstown, Cambria by handing to Paul Kiever, Staff atto a and made known to him My costs paid by Cumberland Co. Sheriff. Sworn and subscribed before me this /R-day of (L11 (6, 1919 Pa. copy of the original complaint the contents thereof. So answers, k/ Sh riff of Carabria County, PA COSTS SERVICE $ 18.00 MILEAGE 14.26 AFFIDAVIT 3.00 S35.26 NOW -Now In The Court of Common Pleas of Cumberland Y-F Service, Corp. VS. Zamias Services, I Now,' County, Pennsylvania RIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Allegheny County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, 'A, within upon at by handing to 19 7% at o clock k served the a co of the original * '` 10 y PY O and made known to COSTS Sworn and subscribed before SERVICE , 00 me this _ day of 19 MILEAGE 3,00 Q I A AFFIDAVIT 3,00 Notarial Seal Q,?p 1 ?q Shetla R. O'Brien. Nof otary Public Plltsburgh, Allcoheny County My Conimisvon Exnims June 19, 2000 -4 Y-F SERVICE CORP., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ZAMIS SERVICES, INC., : and SUN LIFE INSURANCE COMPANY: OF NORTH AMERICA, : Defendants NO. 99-5309 CIVIL TERM ORDER OF COURT AND NOW, this `{ day of April, 2000, upon consideration of Plaintiff's Petition for Preliminary injunction, and counsel having apparently not succeeded in drafting a proposed order for signature in accordance with the order of court dated October 13, 1999, but no request having been received by the court for intervention, the court will regard the matter as requiring no further disposition, pending any request by counsel for further action. J Benjamin F. Riggs, Jr., Esq. 101 south George Street York, PA 17401 Attorney for Plaintiff Timothy J. Niehman, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Defendants Zamias Services and Sun Life 00 a `'R, " BY THE COURT, - % e Joseph A. Anthony, Esq. 300 Market Street Johnstown, PA 15901 Attorney for Defendant Zamias Services, Inc. Dino A. Ross, Esq. 213 Market Street P.O. Box 11844 Harrisburg, PA 17108-1844 Attorney for Defendant PNC Bank :rc Y- F Plaintiff VS. No. 99.5309-Civil Term ZAMIAS SERVICES INC. and SUN AMERICA LIFE INSURANCE COMPANY Defendants STIPULATION AND CONSENT ORDER WHEREAS, on August 30, 1999, Y-F Service Corp, (the "Plaintiff') filed a Complaint to Enjoin Violation of Lease and Petition for Preliminary Injunction with this Court; and WHEREAS, on October 13, 1999, Plaintiff filed an Amended Complaint to Enjoin a Violation of Lease adding Sun America Life Insurance Company ("Sun Life") as an additional Defendant; and WHEREAS, on October 13, 1999, the Plaintiff, Defendant Zamias Services, Inc. ("Zamias") and Defendant PNC Bank, National Association ("PNC Bank"), stipulated that PNC Bank would be discontinued from the above- captioned action; and, WHEREAS, this Court scheduled a hearing on October 13, 1999, regarding Plaintiffs Petition for Preliminary Injunction; and, WHEREAS, the Plaintiff, Zamias and Sun Life desire to resolve the Plaintiffs Petition for a Preliminary Injunction and its Amended Complaint to nuu 'au :_wu .? ?? purr, rcucrtnL '!1/ CDG /7?b H.0410'? Enjoin Violation of the Lease by the terms of this Stipulation and Consent Order (the "Stipulation and Consent Order"). WHEREFORE, the Plaintiff, Zamlas and Sun Life and each parties respective successors and assigns do hereby agree, stipulate and consent as follows: 1. The foregoing recitals are true and correct and are deemed an essential part of this Stipulation and Consent Order; all parties agree to be bound by such recitals as admissions of fact, the same as if each recital was fully restated in this paragraph; 2. Defendants Zamias or Sun Life shall pay the Plaintiff the sum of $42,500.00 in certified funds no later than the close of business of the 15t business day that PNC Bank conducts business in the former branch of York Federal Savings and Loan Association located at the MJ Carlisle Mall ("Mall'). The former branch location of York Federal Savings and Loan Association is designated by the No. 2 on the Plan which is attached hereto, made a part hereof and incorporated as Exhibit A. Payment shall be made to Benjamin F. Riggs, Jr., Esquire, Counsel for Y-F Service Corp. and sent to the address of: Attn: Legal Department, 101 South George Street, York, Pennsylvania 17401. 3. Plaintiff and Sun Life shall enter into a mutually agreeable ten year Land Lease ("Land Lease"), regarding Plaintiffs use of an existing building located on an outparcel in the Mall designated as "No. 1" on Exhibit A ('Building"). The Land Lease between the Plaintiff and Sun Life will be rent free for the entire ten year term and the term of the Land Lease shall begin on the first 2 IUMN rMUMMHL '.'1'. bbd 'Po.Sb I'. day that the Wal-Mart store location that will be constructed at the Mall opens for business. The Plaintiff, however, shall be responsible for all costs associated with the upkeep, monthly utility charges, signage and maintenance of the ATM and Zamias and Sun Life shall be responsible for all costs associated with the upkeep and maintenance of the Building as well as all costs associated with providing electrical service to the Building. Additionally, the Plaintiff shall not extend the Building beyond its existing footprint, nor shall it be used for any other purpose than as an automated teller machine. The Plaintiff has the right to begin the operation of the automated teller machine on the date that PNC first conducts business at the Branch and will be provided reasonable access prior thereto to install said machine. 4. The entrance located in the immediate vicinity to the Building, which is designated as No. 3 on Exhibit A, shall never be closed or modified as an entrance to the Mall during the term of the Land Lease, without the permission of the Plaintiff. 5. The area known and designated as No. 2 on Exhibit A, which delineates the former branch location of York Federal Savings and Loan Association ("Branch"), may be used without the imposition of Liquidated Damages (See Paragraph 6) by PNC Bank as a branch location for a period of twelve (12) months ("Original Term"). That twelve month period shall begin to run on the date that PNC Bank first conducts business at the Branch. Once PNC Bank's period of use has expired Spursuant to this paragraph or paragraph 6), the Branch shall be completely razed by Sun Life, its successors and assigns. 3 '.1'/ tlbL 'P7.?b r,Ub/Ur 6. If PNC Bank shall continue to occupy or conduct business in any regard at the Branch, subsequent to the twelve month period as described in paragraph 5, then Sun Life, its successors or assigns, shall be required to pay liquidated damages to the Plaintiff in the amounts set forth in this paragraph 6. Liquidated damages for the first ninety (90) days ('90 Day Period") after the Original Term shall be $500.00 per day. If PNC Bank shall continue to occupy or conduct business in any regard subsequent to the 90 Day Period, then Sun Life, its successors and assigns, shall be required to pay liquidated damages in the amount of $700.00 per day until PNC Bank ceases conducting business at the Branch. The parties hereto have fully negotiated the provisions of this paragraph 6 with respect to the liquidated damages free from duress or other undue influence. Having agreed that it would be difficult, if not impossible, to determine or ascertain the actual amount of any losses which Plaintiff would incur as a result of any delay in PNC Bank ceasing the operation of its business at the Branch, the parties hereto have, independently and in good faith, determined that the foregoing liquidated damages are a fair and reasonable estimation of and basis for any such losses. Accordingly, in the event of any such delay, subject to the conditions above, and anything in this Stipulation and Consent Order to the contrary notwithstanding, the foregoing liquidated damages shall be the sole obligation of Sun Life, its successors or assigns and shall be in lieu of any other rights or remedies, at law or equity, which Plaintiff would otherwise have against Sun Life or any other party hereto. Except for the liquidated damages provided for above, Plaintiff hereby waives any other right or 4 nVV l.i ._VVV LV r?r i??i\I? I'L VLf?,n?. 1 1 l 'L . J10 I. V . V remedy Plaintiff may have against any other party hereto as a result of such delay. Having reviewed the terms and conditions of this Stipulation and Consent Order and finding the terms and conditions contained herein to be reasonable, it is this 10 4 day of S 2000 by the Court of Common Pleas of Cumberland County, Pennsylvania, so ORDERED. By the Court: J Wesley Ole ,J , J: ?,?p?'? `00 ll" 1 '5 Reviewed and consented to this day of , 2000, by Y-F Service Corp., Zamias Services, Inc. and Sun Life Insurance Company of America. Zamias Services, Inc. Sun America Life Insurance Company of America TOTAL P.07 By: c / ?. . KEITH C. H 10J?1 G eoS ? 20 I I: I (I Cl.4?iccn? J•;? .;VUi;7Y PENNSYLVi'WA