HomeMy WebLinkAbout99-06249A.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
DIXIELU, INC.,
Plaintiff ) NO. qq _ (.Payq
Vs. )
DBI MANAGEMENT and )
DAVID L. BILLMAN, )
Defendants )
NOTICE UNDER RULE 2958.3 OF JUDGMENT
AND EXECUTION REQUIRED
NOTICE OF DEFENDANT'S RIGHTS
TO: Defendants DBI MANAGEMENT and
DAVID L. BILLMAN
A judgment in the amount of $351,636.00 has been entered against you and in favor of the plaintiff without
any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper
allegedly signed by you. The court has issued a writ of execution which directs the sheriff to take your money or
other property owned by you to pay the judgment.
If your money or property has been taken, you have the right to get the money or property back if you did
not voluntarily, intelligently and knowingly give up your constitutional right to notice and hearing prior to the entry
of judgment or if you have defenses or other valid objections to the judgment.
You have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently and
knowingly give up your rights to notice and hearing prior to the entry of the judgment. If you wish to exercise this
right, you must immediately fill out and sign the petition to strike the judgment which accompanies the writ of
execution and deliver it to the Sheriff of Cumberland County at the Cumberland County Courthouse, I Courthouse
Square, Carlisle, PA 17013.
IT IS IMPORTANT THAT YOU ACT PROMPTLY. IT WILL BE T00 LATE TO REGAIN YOUR
PROPERTY IF YOU WAIT UNTIL AFTER THE PROPERTY HAS BEEN SOLD BY THE SHERIFF OR
TURNED OVER TO THE PLAINTIFF.
YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO
AJUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU
OR YOU MAY LOSE YOUR RIGI ITS.
Se".t?p??ib.YAt?tiPdNR$
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YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET HELP:
COURT ADMINISTRATOR
4THFLOOR, CUMBERLAND COUNTY COURTHOUSE
CARLISLE, PA 17013
Phone: (717) 240-6200
TALLMAN, HUDDERS & SORRENTINO, P.C.
SCOTT ON, Esquire
Att D. No.62720
RNEY FOR PLAINTIFF
•
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
DIXIELU, INC.,
Vs.
DBI MANAGEMENT and
DAVID L. BILLMAN,
Plaintiff' )
Defendants )
NO.
NOTICE UNDER RULE 2967
PETITION TO STRIKE JUDGMENT
REQUEST FOR PROMPT HEARING
I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to
notice and hearing prior to the entry ofjudgment. I petition the court to strike the judgment on this
ground and request a prompt hearing on this issue.
I verify that the statements made in this Request for Hearing are true and correct. I
understand that the false statements herein are made subject to the penalties of 18 Pa.C.S. §4904
relating to unsworn falsification to authorities.
My telephone number is
DBI MANAGEMENT
Dated:
Notice of the hearing should be given to me at
BY:
DAVID L. BILLMAN, Owner/President
Vs.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
DIXIELU, INC.,
DBI MANAGEMENT and
DAVID L. BILLMAN,
Plaintiff )
Defendants )
c
NO. qq-19x49
CONFESSION OF JUDGMENT BY COMPLAINT FOR MONEY
Pursuant to the authority contained in the warrant of attorney, a copy of which is attached to
the complaint filed in this action, I appear for the defendants and confessjudgment in favor of plaintiff
and against defendants as follows:
Principal amount due and owing:
- liquidated damages for years 1999 - 2004 $305,750.00
- attorneys commission (I S% of full amount of claim $ 45,862,50
- costs $ 23.50
- interest (I S% per annum on overdue amount from date
of confessing judgment)
TOTAL: $351,636.00
I hereby certify that the address of the within named Defendants is 825 Pennsylvania Avenue,
Lemoyne, Pennsylvania 17043.
I hereby certify that the address of the within named PlaintifTis 160 Wilson Drive, Lancaster,
Pennsylvania 17603.
TALLMAN. HUDDERS & SORRENTINO, P.C.
DATE: OCTOBER /L , 1999
By:
SCOTT R. VP5M, Esquire
Attorne #62720
1611 nd Road, Suite 300
Allentown, PA 18104-2256
(610) 391-1800
ATTORNEY FOR PLAINTIFF
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
DIXIELU, INC.,
Vs.
DBI MANAGEMENT and
DAVID L. BILLMAN,
Plaintiff )
Defendants )
NO. 9q- ua49
COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY
Plaintiff, Dixielu, Inc., by and through its attorneys, Tallman, Hudders & Sorrentino, P.C.,
files the within Complaint for Confession of Judgment for Money and, in support thereof, alleges the
following:
1. Plaintiff, Dixielu, Inc., is a Pennsylvania corporation with offices located at 160 Wilson
Avenue, Lancaster, Lancaster County, Pennsylvania.
2. Defendant, DBI Management, is a business entity of an unknown corporate structure with
a current principal place of business, believed and therefore averred, at 825 Pennsylvania Avenue,
Lemoyne, Cumberland County, Pennsylvania 17043.
3. Defendant, David L. Billman, is an individual having an address, believed and therefore
averred, of 825 Pennsylvania Avenue, Lemoyne, Cumberland County, Pennsylvania 17043.
4. Attached hereto as Exhibit "A" is a true and correct copy of the original Lease Agreement
authorizing confession and executed by David L. Billman on behalf of DBI Management.
5. The attached Lease Agreement has not been assigned.
6. Judgment has not been entered in any jurisdiction on the attached Lease Agreement
authorizing confession.
7. Upon breach of the attached Lease Agreement, all liquidated damages and other sums due
pursuant to the terms of the Lease Agreement shall at once become due and payable.
8. By virtue of their failure to pay rent on a timely basis and provide an appropriate
certificate of insurance, Defendants are in default in accordance with Section 18.1 of the Lease
Agreement which has resulted in Defendants being liable for liquidated damages in the amount of
$351,636.00.
9. Despite demand and in breach of the aforesaid Lease Agreement in the year 1999,
Defendants are indebted to Plaintiff in the total principal sum of $351,636.00, which is the aggregate
of the following items:
- liquidated damages for years 1999 - 2004 $305,750.00
- attorneys Commission (15% of full amount of claim $ 45,862.50
- costs $ 23.50
- interest (I S% per annum on overdue amount from date
of confessing judgment)
TOTAL: $351,636.00
10. This Complaint in Confession of Judgment for Money is not being entered by confession
against a natural person in connection with a consumer credit transaction.
11. Judgment has not been entered in any jurisdiction on the attached Lease Agreement
authorizing confession.
WHEREFORE, Plaintiff, Dixiclu, Inc., demands judgment in the amount of
1)
appearing in the attached instrument.
TALLMAN, HUDDERS & SORRENTINO, P.C.
By:
SCOTT , Esquire
Atto . . No. 62720
16 and Road, Suite 300
Allentown, PA 18104-2256
(610) 391-1800
DATE: OCTOBER /L , 1999 ATTORNEY FOR PLAINTIFF
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Exhibit A
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•• MIC02ISIS T1T2999249 P.02
LEASE
THIS LEASE, made as of the t day of 964A--o- 199x, by and between
DWeLu inc, with a tin al lace of business at 160 won Dr, Lancaster, Po 17603 (Hereinafter called
"Landlord"), and C?T /%911495 eV Y. haviag a principal office at 825 Pennsylvania Ave,
Lemoyne, Pa 17043 (hareina(ta called "Tenant"), and David Billaan, (hereinafter called "Guarantor"), with a
malting address of 825 Pennsylvania Ave, Lemoyne, Pa 17043 , and phone number 717 737 5205 x7321.
WITNESSETH
Article .
Section 1. 1. DF.MiSIN G OEPREM(M
Landlord, in consideration of the rents to be paid and the covenants and agreements to be performed
and observed by Tenant, does hereby lease unto Tenant, and Tenant does hereby lease and take from Landlord,
a portion of aIi that certain parcel of land located at 5103 Carlisle Pike, Mechanicsburg, Pennsylvania, located
In the Township of Hampden, County of Cumberland as more particularly described on Exhibit "A" attached
hereto and incorporated herein by reference (hereinafter referred to as the "Premises" or "Shopping Center").
The demised premises are a portion of the Shopping Center and shown on Exhibit "A", attached hereto,
containing approximately 7,500 squaro feet of floor area (said portion of the building and land are hereinafter
collectively cfer, 4 to as the "Demised Premises"). The Demised Premises have been inspected by Tenant,
and Tenant agrees to accept the same in then present condition subject to the providona of Section 20.19(C)
below.
Section 2. 1. JERM OF LEASE
The term of this Lease shall begin on the Commencement Date (as defined in Section 2.2), and shall
terminate on the last day of the fifth (5th) Lease Year of the Term hereof For purposes of this Lease,
e Leese Year shall be the tweh•e-month period commencing on the Commencement Date and
terminating at midnight on the 365th day following the Commencement Data or the anniversary of the
Commencement Date, as the case may be, except in leap years in which case die last day of the Lease
Year shall be the 366th day following the Commencement Date or the anniversary of the
Commencement Date, as the case may be, except however, that if the Commencement Date shall be
other than the first of the month, the "First Lease Year" shall be the period commencing on the
Commencement Dote and terminating on the last day of the month in which the Commencement Date
occurred in the fallowing year.
NICOZISIS 7172999249 P.03
Section 2.2. COMMENCEMENT DATE
The "Commencement Date" shall mean 60 days after possession; rent shall be due on the 60° day and
prorated ifnecessary for that month only. possession of demised premises shall tale place on or about
May Ro 1999.
Articla.3
Section 3. 1. RIGHT TO EXTENQ
Tenant shall have the right, at its option, to extend the original term of this Lease for
one succemive additional period of 5 years, exercisable upon the following terms and
conditions:
(a) Tenant shall give Iandlord written notice of such election to extend the term hereof not
later than sic (6) months prior to the expiration of the then-current term;
(b) At the time of exercise of such election, Tenant shall not be in default under this Lease
(subject to any applicable notice and cure periods); and
(o) The renewal term shall be upon the same terms and conditions as during the original tetra
hereog except that Tarrant shall have no further election to extend the term of the lease beyond the expiration
of the renewal term and Annual Rent (defined below) shall increase. During the first year of the renewal test,
the base Annual Rent shall increase to S.25 per square foot and increase S.25 per square foot per annum
during every year in the option period.
Section 4. 1. ANNUAL RENT
Tenant agrees to pay Landlord and Landlord agrees to accept during the term hereof, at such place as
Landlord shall from time to time direct by notice to Tenant, "Annual Rent" for the term of this Lease, subject
to adjustments as more My set forth in Section 3.1 above and this Section 4. 1, at the annual rote of Eight
Dollars and 20/100 (58,20) Dollars per square foot, multiplied by the square footage of the Demised premises
(7,500 sf) resulting in to Annual Rent of $61,500, payable in advance in equal monthly intsallments on the fast
day of each and every calendar mouth during the fast Lease Year of S5,125. The Annual Rent shall be
increased to $8.45 per square foot in the following lease year, or $63,375 annual; 55,281.25 moodily, and will
automatically increase each succeeding Lease Year at the rate of S.25 per square foot every Lease Year within
the primary lease tcrm, thus taking the Annual Rent during the third Lease Year $65,250 and the fourth Lease
Year $67,125 and so on.
Section 4.2. EA1QMENT OF RENTALS
NICO2ISIS 7172999249 P.04
All rentals and charges agreed to be paid as rentals as provided in this Article 4 are payable, except to
the extent specifically provided elsewhere herein, without setoff or deduction on the date when due. All rentals
shall be payable, without prior notice or demand, at the address hereinafter set forth for the giving of notice to
Landlord.
Article 5,
Section 3. 1. PERSONAL PROPERTY TAXES
Tenant shall be liable for all taxes levied or otherwise charged or assessed against-any and all personal
property, equipment and/or trade fixtures placed by Tenant in the demised Premises.
Section 5.2. LANDLORD PAYS REAL ESTATE TAXES
Landlord shall pay Tenant's Proportionate Share (as hereinafter defioed) of any real estate tares
imposed upon the Premises for each Lease Year included within the period commencing with the
Commencement Date and ending with the expiration of the initial and any renewal term of this Lease. For each
Lease Year, "Tenant's Proportionate Share" of the real estate taxes upon the Premises (including the Common
Area) shall be the ,produce of such taxes mu*Hcd by a fraction, the numerator of which shall be the gross
leasable area (expressed in square feet) in the Demised Premises and the denominator of which shall be the
gross area (expressed in square feet) of all the then leasable area in the Premises. Landlord shall, upon request,
furnish to Tenant, a copy of all tax bills showing that payment has been received by the tang authority.
For the purpose of this Lease, the term "real estate taxes" shall include any special assessments, but
include water and sewer rents or charges and other governmental impositions imposed upon or against the
Premises of every lmtd and nature whatsoever, extraordinary as well as ordinary, foreseen and unforeseen, and
each and every installment thereof. which shall or may during the lease term be levied, assessed or imposed
upon or against such Premises. Tenant shall not be obligated to pay for any assessment for improvements
requested or required by other tenants, if any. To the extent Tenant is required to pay for any assessment for
improvements, Tenant's obligation shall be determined by treating the assos6ment as payable in as many
installments as is lawful without the imposition of interest or penalty(ies), and charging Tenant with Tenant's
Proportionate Share thereof during the Lease Year corresponding to an annual payment of the assessment; any
annual assessment deemed payable after the term of this Lease shall not be Tenant's obligation. In the event
any Pennsylvania realty transfer tax is assessed or imposed on this Lease. said tax shall be paid equally by
Landlord and Tenant.
Article 6.
Section 6. 1. I[Ii LiiY COSTS
A separate electrical and/or natural gas meter has been or will be installed to meter the consumption of
electricity and/or natural gas used within the Demised Premises. Ali charges incurred thereon shall be paid by
NICt12ISIS 7172999249 P.aM
the Tenant directly to the utility company. Should Tenant not make payment thereof and should Landlord
become obliged to pay the same, Tenant shall pay said sum to Landlord the same as rental duo and in arrears
and any security deposit which the utility company may require because of Tenant's non-payment.
Section 6.2. SERA
Provided Landlord has not intentionally caused the unavailability of utility services, Landlord shall incur
no liability whatsoever should any utility become unavailable from any public utility company, public authority
or any other source, person, firm or corporation, including Landlord. Landlord shall not, under any
circumstances, be liable to Tenant In damages or otherwise for any interruption in service of water, natural gas;
electricity, heating, air-conditioning or other utilities caused by an unavoidable delay, by the making of any
necessary repairs car improvements or by any cause outside of Landlord's reasonable control. and the some shall
not constitute a termination of this lease or eviction (constructive, or otherwise).
Section 6.3. COMMON ARFA I IT .1TrFc
Subject to Tenant's obligation to pay its Proportionate Share as more fully set forth in Section 8.7
below, Landlord shall provide water and sewer services, electricity and lighting in the common areas ofthe
Premises.
Section 7. 1. Lt1I. LQBD'$_L_IAIR.
Throughout the term hereof Landlord shall, except for repairs oecesdtated by the act or neglect of
Tenant, or its employees, agents, invitees, sublessees, licensees or contractors, make all repairs to the roof the
structural portions of the Demised Premises, including the
structural portions of the floor slab, the bearing wells, foundations, and all structural members. Landlord shall
not be obligated to repair or maintain the doors, windows, heating, ventilation and air conditioning systems,
electrical systems, interior plumbing or other utility lines of the Demised Premises. Landlord shall be permitted
to enter into the Demised Premises or any portion thereof at any time in the event of an emergency, including
but not limited to those occasions where the health, safety or welfare of Tenant or any other tenant is at risk, or
where the Demised Premises or any major system serving the Demised Premises smut be repaired.
Section 7.2.l$Ep
Subject to the provisions of Article 17 hereof and except for ordinary wear and tear, repairs required of
Landlord pursuant to Sections 7.1 and 7.3 of this Article, and maintenance or replacement necessitated as a
NICO22SIS 7172999249 P.06
result of the act or neglect of Landlord, its employees, agents, servants or contractors, Tenant shall repair and
maintain the Demised Premises in good order and in a clean, safe and sanitary condition.
Tenant shall keep all non-structural elements in the interior of the Demised Premise, and all heating,
ventilation and air conditioning cgttipment and fixtures in good order and repair and will make all replacements
thereto At its sole cost and expense; and will surrender the Demised Premises at the expiration of the term or at
such other time as it may vacate the Demised Premises in as good condition as when received, excepting
deterioration caused by ordinary wear and tear, subject, of course, to the casualty provisions of Article 16
below. Landlord shall warrant HVAC system, defined as being adequate and fimctional, for the first 90 days of
operation starting with Tenant's possession. Tenant shall pay for service call charge associated with turning on
or starting tip system Any flooding and/or water damage to the Demised Premises shall be the sole
responsibility of Tenant and Tenant shall promptly repair all such damage to the Demised Premises caused
thereby. Tenant will not overload the electrical wiring, servicing the Demised Premises. and will install at its
own expense, and in accordance with applicable building code requirements, any additional electrical wiring
which may be required in connection with Tenant's equipment or machinery. Tenam Agrees to obtain and
maintain throughout the term of this Lease and any extension or renewal of same, a maimeoance concoct for
periodic cleaning, servicing and repairs of all heating, ventilation and air conditioning equipment servicing the
Demised Premises such that service shall be provided no less than twice a year and shall provide proof of same
to Landlord. Tenant shall also be solely responsible for any and all trash removal from the Demised Premises
and will comply with all recycling requiremrnts imposed by local municipal authorhics. Any damage sustained
by any panty caused by mechanical, electrical, plumbing or any other equipment or installations, whose
maintenance and repair is the responsibility of Tenant, shall be paid by Tenant and Tenant shall indemnify and
hold Landlord harmless from and against any and all claims, actions, damages and liability in connection
therewith.
Section 7.3. REQUIREMENTS OF LAW
Landlord agrees that if the federal, or any state or municipal got eminent or any department or division
thereof has or hereafter shall condemn the Demised Premises or any pan thereof as unsafe or as not in
conformity with the laws and regulations relating to the construction thereof, or, with respect to items which
are Landlord's dirty to repair pursuant to this Lease, any federal, state or municipal government or any
department or division thereoQ has ordered or required, or shall hereafter order or require any alterations or
repairs thereof or installations therein, Landlord will, as soon as is commercially practicable, rebuild or crake
such alterations, installations and repairs as may necessary to comply. with such laws, orders or requirements
(the validity of which Landlord shall be entitled to contest) unless such condemnation makes restoration or
rebuilding impractical or unfeasible, in which case this Lease shall terminate upon no less than thirty (30) days
prior notice to Tenant by Landlord. If by reason of such laws, orders or the work done by landlord in
connection therewith Tenant is deprived of the use of the Demised Pretn ses, the Annual Reat, and other
charges payable by Tenant under this Lease shall be abated or adjusted. as the case may be, in proportion to
that time during which, and to the extent, Tenant is deprived o£s portion of the Demised Promises. If,
NIC02ISIS 7172999249 P.07
however, such condemnation, law, order or requirement, as in this Article set forth, shall be with respect to
Tenant's particular and precise use of the Demised Premises, then Tenant Will immediately at Tenant's own cost
and expense comply therewith and no abatement or adjustment of rent shall be granted, provided however, that
Tenant shall be entitled to contest the validity thereof. In no event shall Tenant be required to make structural
changes or structural additions to the Demised Premises.
Section 7.4. TENANTS r.T RAT10j_7$
Upon the prior wtinea consent of Landlord, Tenant shall have the right, at its sole expense, from time
to time, to redecorate the Demised Premises and to make such alterations and changes in such parts thereof as
Tenant shall deem expedient or necessary for its purposes; provided, however, that such alterations and
changes when completed shall neither impair the structural soundness nor diminish the value of the building of
which the Demised Premises forms a part and Tenant may, at its option, remove all such redecorations.
Alterations and changes provided Tenant repairs any damage to the Demised Premises caused by such removal.
Landlord shall at Tenant's sole cost and expense execute and deliver upon reasonable request of Tenant
such instrument or instruments embodying the approval of Landlord which may be required by any public or
quasi-public authority for the purpose ofobtainiag any licenses or permits for the making of such alterations,
changes and/or installations in, to or upon said Demised Premises and'fenant agrees to pay for such licenses or
permits and any and all costs associated therewith. Tenant %ill indemnify and save harmless the Landlord from
and against all mechanics' liens or claims by reason of such alterations, additions or repairs which may be made
by Tenant and/or its contractors aod/or subcontractors on the Demised Premises.
Under no circumstances shall Tenant make structural changes or changes to the exterior of the Demised
Premises. Any work done by Tenant which affects the exterior utility lines shall be subject, to the extent such
work effects the exterior utility limes, to Landlord's prior written approval. All work performed on or in the
Demised Premises must be done in a good and workmanlike manner and if the work to be performed involves
the expenditure of $5,000 or more, all contractors and sub-contractors of Tenant shall be required to maintain
liability and workers' compensation insurance with Landlord named as an additional insured with coverage of
no less than 5500,000.00/occurreace and S 1,000,000.00 in the aggregate. Work must be performed in
accordance with all applicable building, fire and safety codes, regulatlons, ordinances and laws.
Section 7.5. PERI UTS AND FXPFN s
Each party agrees that it will procure all necessary permits before making, an.y repairs, alterations,
other improvements or installations, including without limitation, any alterations made pursuant to Section 7.4
of this Article. Each party hereto shall give written notice to the other of any repairs required of the other
pursuant to the provisions of this Article and the party responsible for said repairs agrees promptly to
commeaee such repairs and to prosecute' the same to completion diligently, subject however, to delays
occasioned by events beyond the control of such party.
NICO2ISIS 7172999249 P.88
Each party agrees for itself to pay promptly when due the entire cost of any work done by it upon the
Demised Premises so that the Demised Premises at all times sball be free of Hens for labor and materials. Each
party fiuther agrees to save harmless and indemnify the other from and again a any and all injury, loss, claims
or damage to any person or property occasioned by or arising out of the doing of any such work by such party
or its employees, agents or contractors. Each party further agrees that in doing such work it sball employ
materials of good quality and comply with all governmental requirements, and perform such work in. a good
and worlma Me mneaner.
Tenant agrees that the Demised premises is to be received upon possession in an orris condition and
therefore tenant is fttlly aware that Tenant alone shares the entire burden and cost of the approval process
needed for a certificate of occupancy, including Labor and Industry, Hampden Township, and the
Commonwealth of Pennsylvania. The inability to obtain permits in a timely fashion does not release Tenant
from commencement obligations which begin in the 601' day following possession
Article 8•
Section 8. 1. IMPROVEMENT OF COMMON AREA
Landlord shall maintain the entire Common Area (as defined bereinbelow), shown on or described in
Exhibit "A" attached hereto and made a part hereof
Section 8.2. GRANT OF EASEMENT AND RIGHT TO USE
Except to the extent permitted as set forth below, Landlord covenants that At All times during the initial
term of this Lease and during any extensions thereof Landlord shall continuously and whbour interruption
make available, and bereby grants and demises to Tenant and Tenant's successors and assigns, a non-exclusive
easement and the right for Tenant, in common with Landlord and all persons, firma and corporations
conducting business within the Premises and their respective customers, guests, licensees, invitees, employees
and agents, to use those portions of the Premises outlined on Exhibit "A" attached hereto and shown thereon as
automobile parking areas, pedestrian and vehicular accessways, sidewalks and passageways and ingress mad
egress areas (which parking and common areas are herein collectively reforred to as "Comnwn Area") for
ingress and egress, parking and aD purposes for which such areas would customarily be utilized.
Section 8.3. DUTIESQ):' LANDLORD
During the initial term of this Lease and any extension thereof and subject to Tenant's obligation to
contribute its Proportionate Share as provided elsewhere in this Lease, Landlord dull:
(a) Manage, maintain and operate the Common Area in an efficient, economical manner
consistent with good management techniques and as hereinaRer provided;
(b) Maintain the Common Area and every portion thereofin a good and clean condition,
including but not Iunited to, maintenance of common signs, parking area surface (including
NIC02ISIs 7172999249 P.09
stripe painting and the removal of mow and ice therefrom), landscaped areas and the removal of
rubbish and other refusc and debris;
(c) Kecp the Common Area well tillttmmated during those hours ofdarimess when Tenant is
conducting its business on the Demised Premises;
(d) Pay all real and personal property taxes, levies and assessmrnts applicable to the
Common Area;
(e) Pay all personal liability insurance to be provided by Landlord on the Common Area as
hereinbelow provided;
(f) Pay all wages, workers' compensation insurance, unemployment taxes and other costs
and expenses of employees necessary to maintain and operate the Common Area; and
Pay all contractors fees in the event the management. maintenance and operation of the
Common Area is performed by an independent contractor.
In any case, notwithstanding anything to the contrary, under no circumstances shall Landlord's liability
hereunder exceed the value of the Demised Premises, it being the intention of the parties hereto, that Landlord's
obligations and liabi'li'ty are non-recourse in nature and limited to the value of the Domiscd Premises (including
the rents and proSis therefrom subject, of course, to any applicable security interest in same).
Section 8.4. LANDLORD'S CONTROL OF COMMON AREA
Landlord shall throughout the term hereof operate and maintain the Common Area, including the
panting areas, substantially as shown on Exhibit "A", for the use and benefit of the tenants of the Premises.
Section 8,5. [CONSTRUCTION
Landlord shall notify Tenant in writing at least thirty (30) days prior to the
commencemeat of any reconstruction, repairing or repaving of the Common Area unless such reconstruction,
repairing or repaving is necessitated by events beyond Landlord's control ("exigent circumstances"), including
but not limited to items such as weather conditions, public health or safety concerns or orders by any
governmental authority, court or tribunal In the event such exigent circumstances exist Landlord shall give
Tenant as much advance notice as possible but shall not be bound by the thirty day limitation listed above, in
the event such reconstruction, repairing or repaving substantially impedes or interferes with noruul access to
the Demised Premises in a manner which interferes with Teaant's business therein, and such condition continues
in excess of seven (7) days after notice to Landlord from Tenant, then and in any such event, until such work
no longer substandally impedes or interferes with normal access to the Demised Premises and provided an
Event of DefAuh has not occurred, all rent obligations including Annual Rent, Comma Area Maintenance
costs, real estate taxes and insurance pass-through items, shall abate proportionately during the period
subsequent to such seven-day period, until the substantial impedhaeat(s) or interference has ended, at which
time all rent abatement shall cease.
NICOZISIS 7172999249 P.10
Section 8.6. INSURANCE
Landlord and Tenant agree to iadema* and hold the other harmless from and against any and all
claims, damages or causes of action for damages brought on account of injury to any person or persons or
property, or loss of life, arising out of the use, operation or mamteasnce of the Common Arcs, provided such
damage or injury is not as it result of Tenant's negligence or the negligence of Tenant's employees, agents,
contractors or invitees. For the purpose of so protecting Tenant, Landlord shall keep in full force and effect a
comprehensive general liability insurance policy covering the Common area wither the promisee, with liability
limits being not less than those provided for in Section 10.1 of this Lease and other policy provisions being
substantially equivalent to those provided for in Section 10. 1 of this Lease.
Tenant shall be responsible for reimbursing Landlord any cost increases in insurance premiums incurred
by Landlord as a result of Tenant's use or actions.
Section 8.7. RFiMMURSFMFNT BY TENANT
During the initial term of this Lease and any extension thereof, Tenant shall not be required to
reimburse Landlord, as additional rent, "Tenant's Proportionate Sbare" (as hereinafter defined) of the Common
Area Maintenance costs" (as hereinafter defined), it being the intention of this agreement to be a gross lease.
The term ",Comte Area Maintenance costs" shall mean all actual direct costs and expenses reasonably
paid or insured by Landlord during the Lease Year in managing, equipping. taintsiami g and operating
(including, without limitation, cleaning, snow removal, lighting, landscaping, insurance-, striping and repairing
the Common Area as hereinabove provided), except however, "Common Area Maintenance costs" shall
exclude: (a) the cost of any capital improvements or the cost of repairing or replacing any portion of the
Cotmton Area, the original construction of which was defective; (b) the cost of any machinery or equipment
used exclusively for the maintenance of the Common Area, which could be properly capitalized under
Generally accepted accounting principles, except that these shall be permitted in "Common Area Maintenance
costs" a charge for depreciation calculated on a straight-line basis over the normal useful life of such
*rovement, repair, replacement machinery or equipment, as the case may be; and (c) any real estate taxes or
assessments levied against any portion of the Common Area, said taxes being apportioned elsewhere under the
terms of this Lease.
Landlord shall keep good and accurate books and records in accordance with generally accepted
accounting principles applied on a basis consistent with prior years reflecting the operation, maintenance and
toanegemeat of the Common Area.
Section 9. 1. TENANTS COVENANTS
HICOZISIS 7172999249 P.11
C) any notification and supporting iofomtatiun submitted or maintained pursuant to
Environmental Statutes;
d) any Permit, license, approval or amendment or modification thereof obtained
pursuant to Environmental Statutes;
e) any record, report or manifest required to be submitted or maintained pursuant
to Environmental Statutes; and
0 any correspondence, notice of violation, summons, order, complaint or other
document received by Tenant pertaining to compliance with Environmental Statutes.
B. Release of Hazardous Substances ind Wastes. Tenant shall not cause or allow the
release of hazardous substances or wastes at the Demised Premises in a manner which is uncontained or
otherwise allows such hazardous substances or wastes to enter the environment, except in compliance with
Environmental Statutes. Temt shall at all times handle hazardous substances or wastes in a manner which will
not cause undue risk of such release. Should any such release of hazardous substances or wastes occur at the
Demised Premises, Tenant shall immediately take all measures necessary to contain and remove all materials
released and remedy and mitigate all threats to the public health and environment caused by such release and in
immediately pay all fines, penalties or assessments associated therewith . Men conducting any muasures the
Tenant shall comply with Environmental Statutes.
C. luile m. Tenant hereby agrees to indemnify and to hold hartnlm
Landlord of, from and against any and all expense, loss or liability suffered by Landlord by
reason of Tenant's breach of any of the provisions of this Section, including, but not limited to: (1) any and all
expenses that Landlord may incur in complying with any Environmental Statutes, (2) any and all costs that
Landlord may incur in studying, containing, removing, remedying, mitigating or otherwise responding to, the
release of any hazardous substance or waste at or from the Demised Premises, (3) any and all costs fnr which
Landlord may be liable to any governmental agency for studying, containing, removing, remedying, mitigating,
or otherwise responding to, the release of a hazardous substance or waste at or from the Demised Promises, (4)
any and all frees or penalties assessed upon Landlord by reason of a failure of Tenant to comply with the
provisions of this Section, (S) any and all loss of value of the Demised Premises by reason of such failure to
comply, and (6) any and all legal fees and costs incurred by Landlord in connection with any of the foregoing.
D. E=. Landlord and its authorized representatives may. at reasonable times but without
notice, enter the Dandsed Premises to conduct reasonable inspections, tests, samplings or other investigations
to satis('y itself that Tenant has complied with the provisions of this Section. Tenant shall, when instructed by
Landlord, permit officials of government agencies to enter the Demised Premises to conduct reasonable
inspections, tests, samplings or other investigations to determine whether Tenant or any coeditioo on the
Demised Premises is in compliance with Environmental Statutes.
E. Remedig.
13
NICO2ISIS 7172999249 P.12
0) Bussing: Buses shall be allowed to pull up to the front door area in the parking lot for drop
off and pickup only and shall be required to immediately ]cave the sboppiag center or park
behind the shopping center budding.
(k) All employees and management of the Tenant trust park in the puking spaces located
behind the building
(L) Tenant shall provide proper vcmlxdon if it is to allow smoking inside the demised premises
Tenant shad not and will not:
(a) Perform any acts or carry on any practice which may materially damage the Demised
Premises or be a nuisance or menace to other tenants of landlord or neighbors of the Premises.
(b) Place or maintain any trash, refuse or other articles in any entry of the Demised
Premises;
(c) Use or permit the use of any area of the Demised Premises for any umlawfid purpose or
abandon the Demised Premises;
(d) Disturb or interfere with in any manner any other tenant; nor
(e) Violate or breach any term or condition of this lease.
Section 10. 1. INDEMNITY AND PUBLIC LIABQ.rrY
Tenant will indemnity Landlord and save it harmless from and against any and all claims, actions,
damages, liabilities and expenses, including attorney's fees and other professional fees, in connection with lose
of life, personal njury and/or damage to property or person nosing is or on the Demised Promises or any part
thereo& occasioned wholly or partly by any act or omission of Tenant, its agents, employees, contractors,
customers, servants or its business invitees. The above mentioned indemnification shall include, but not be
limited to, any and all environmental liability asserted against or incurred by Landlord as a result of the use or
occupancy of the Demised Premises by Tenant or its employees, agents, officers or contractors.
Tenant shall maintain at its sole cost and expense, with respect to the Demised Premise; public liability
insurance with limits of not less than 51,000,000 per occurrence and S2,000,000.00 in the aggregate for injury
or death or property damage insurance, insuring Landlord and Tenant againrt injury to persons or damage to
property as herein provided with Landlord named as an additional insurtMoss payee. A certificate of
insurance shall be delivered to Landlord on or before the Commencement Date and such certificate shall state
that the policy shall not be canceled or modified without thirty (30) days' prior written notice to Landlord.
11
IIICC2r SIS 7172999249 P.1E
Tenant covenants and agrees as follows-
(a) To procure any licenses and permits required for any use made of the Demised Premises
by Tenant, and upon the expiration or termination of this Luse, to remove its goods and effects
and those of all persons claiming under it and to yield up peaceably to Landlord the Demised
Premises in as good condition as when received, excepting deterioration caused by ordinary
wear and tear, casuahy and condemnation;
(b) To permit Landlord and its agents on prior notice and at reasonable times to examine tho
Demised Premises and to show the Demised Premises to prospective purchasers and/or
mottgaees, provided that Landlord shall not thereby unreasonably interfere with the conduct of
Tenant's business; and to permit Landlord to enter the Demised Premises to make such repairs,
improvements, Aerations or additions thereto as may be required by Landlord under the
provisions of this Lease, which Landlord agrees to do in such matmer so as to minimize
interference with Tenant's business at the Demised Premises:
(e) Tenant covenants that Tenant will use, maintain and occupy the Demised Premises in a
careful, safe and 1awfid manner in conformity with this Lease and applicable government laws
and ordinances and will not commit waste therein;
(d) Tenant shall install only those materiels within the Demised Premiuc which have been
certified to be of fire retardant capabilities;
(e) Tenant shall repair any damage to the Demised Premises caused or occasioned by
bringing in or removing any property for Tenant's use regardless of whether such damage be
caused by Tenant or by those acting under or for Tenant.
(f) Tenant shall repair any damage to the Demised Premises caused or occasioned by any
forced entry, attempted or actual, into the Demised Premises;
(g) Tenant shall pay all costs of Landlord for any increase in insurance premiums caused by
any act or neglect to act b y Tenant contrary to any law, statute or governmental regulation, or
the undertaking by Tenant of any use of the Demised Premises more hazardous than the use set
forth in Section 11. 1 of this Lease; and
(h) retrain open and in continuous operation during the lease term and any and all renewals
during its normal business hours.
(i) Tenant shall use parking lot in a tanner that does not impede other Tenants in the
shopping center; Tenant shall restrict its customers to the area width of its storefront,
give or take, and shall be permitted to go deep (to thv South) to the rear of the parking
lot near Carlisle Pike, within store width, a$ car parking dictates.
10
HICOZISIS 7172999249 P.14
( 1) Upon breach by Tenant of any provision of this Section, Landlord may at its sole
discretion terminate Landlord's tenancy by written notice to Tenant, whereupon Tenant shall immediately
vacate and Landlord may immediately reenter the Demised Premises,
(2) The parties recognize that no adequate remedy at law may exist for a breach of
this Section. Accordingly, Landlord may obtain specific performance of any provision of this Section.
(3) This subsection shall not be construed to limit any remedies which Landlord may
have against Tenant at law or equity for a breach of this Section.
F. Survval The provisions ofthis Section shall survive the termination of Tenant's
tenancy ofthis Lase. No subsequent modification or termination of this Lease by agreement of the parties, or
othtawise, shall be construed to waive, or to modify, any provisions of this Section, runless the termination or
moti ficadon agreement or other document so states m writing.
G. Definitions.
For the purposes of this Section, the terms listed below shall be defined as they are defined in the
provisions of law listed below or corresponding provisions of law in the Commonwealth of Penesytvania, and
as such statutes may be amended from time to time.
(1) airpollutant -42 U.S.C. § 7602(8)•
(2) discharge of pollutant - 33 U.S.C. § 1362(12)
(3) release - 42 U.S. C. § 9601(22)
(4) storage - 42 U.S.C. § 6903(33)
(3) treatment - 42 U.S.C. § 6903(34)
(6) disposal - 42 U.S. C. § 6903(3)
(7) solid waste - 42 U.S. C. § 6903(27)
(8) hazardous substance - 42 U.S.C. § 6903(14)
The term "hazardous waste" shall mean all materials identified or listed pursuant to 42 U.S.C.
6921. Landlord represents to Tenant that, to the best of its knowledge, no hazardous waste or material is
present on the Premises or the Demised Premises, except as specifically permitted by and being used in
accordance with applicable laws and regulations.
14
NIGOZISIS TIT2999249 P.17
Section 11.1. USE
Subject to the provisions of Section 20.19 below, the demised Premises shag be used and occupied
solely as a duly license Bingo Hall subject to the laws and regulations of the State and municipalities. Tenant
shall use and occupy the premises only for lawful purposes and permit no use inconsistent with the use of the
other portions of the Premises or which compete with any other business carried on by other tenants of
Landlord. Under no circumstances shall Tenant, subtenant or permitted assignee of Tenant. be permitted to
use the Demised Premises for any use which conflicts or competes with any use of Landlord, or an affiliate of
Landlord, as an operator of a store location in the Premises, or any of Laodlord's other tenants currently or in
the future, including but not limited to the We of Boor or wall covering and related products and services, said
activity being expressly prohibited hereunder. This Section 11.1 shallbe binding upon any and all permitted
assignees and/or sublessees of Tenant. Tenant shall = be open for business nor conduct any work which
would disturb Landlord or the other tenants, m the Demised Premises between the hours of 12:00 P.M. and
6:00 A.M. Monday through Saturday and 12:00 P.M. and 7:00 A.M. on Sundays during the term hereof All
times listed are Eastern Standard Time or Eastern Daylight Savings Time (if applicable) and all references to
times past 12:00 midnight shall be construed as referring to the previous dad.
Article .
Section 12. 1. ASSIGNMENT AND SUBLETTING
Tenant shall not have the right to transfer or assign this Lease or to sublet all or any portions of the
Demised Premises without Landlord's express written prior consent, such consent not to be unreasonably
withheld or delayed however it shall be presumed to be a reasonable withholding of such consent if the
proposed assignee or subtenant of Tenant figs to meet any of the following criteria:
A. The source of the rent and other consideration due under this Lease and the financial
condition and operating performance of the proposed assignee and its guarantors, shall be
similar to the financial condition and operating performance of the Tenant and its guarantors,
as of the time the Tenant became a tenant under this Lease:
B. The assignment or subletting proposed, if consented to, will not breach any prosision
contained in any other lease, financing arrangement, loan agreement or other covenant, term or
condition governing, arising out of or in connection with the Demised Premises; and
C. The assignment or subletting proposed, if consented to. will not disrupt any tenant mix
or balance in the Demised Premises.
D. It is understood that PA Regulations allow sponsorship of Bingo Activities by non-profit
organizations and Tenant is hereby permitted to do so. so long as that organization is in
good standing and is not a controversial " Gioge group" The sponsors ire NOT sublessees
or asskgees, but instead are hereby deemed to be Business Invitees of the Tenant. Tenant
is bound fully to the terms of the entire agreement and is Billy responsible for any and all
15
HIC02ISIS 7172999249 P,16
actions of all Business Invitees. Business Invitees shall not be permitted to open close, or
operate within the dernised premises by themselves, instead, Tenant shall supervise and
manage the business operations at all times.
Any permitted assignment or subletting shall be expressly subject to the proposed assignee or subtenant
executing any documents necessary or advisable, in the reasonable opinion of Landlord's counsel, to bind the
proposed assignee or subtenant to this Lease Agreement and all of Its terms and condition without
exception. Any permitted assignment or subleasing by Tenant shall not release Tenant from any liability
hereunder; Tenant to expressly serve as surety for such permitted assignee or subtenant during the then.
current term hereof Landlord may freely assign any or all of its right, title, interest and/or obligations
hereunder. In the event of an assignment by Landlord, Landlord shall have no further duty or obligation to
Tenant hereunder, such obligations, if any, being automatically extinguished upon assignment of this Lease by
Landlord, provided however, in the event the assignee of Landlord does not have at least as much financial
strength as Landlord, Landlord shall continue to be responsible for those items which expressly survivo
termination of the Lease, for an actions and omissions of Landlord occurring prior to the date of such
assignnteut. Any assignee or successor of Landlord, other thaw Landlord's lender(s), shall agree to assume all
obligations of Landlord existing on the date of such assignment or succession and all future obligations of
Landlord until the expiration of the lease term and any renewal term
Section 13.1. E4Y)URE&
All non-permanent fixtures installed by or at the expense of Tenant and all erections, additions and/or
improvements not affixed to the Demised Premises which were made to, in or on the Demised premises by and
at the expense of Tenant and are susceptible of being removed from the Demised Premises without damaging in
any manner Detnlted Premises, aW remain the property of Tenant and Tenant shall remove the same or any
part thereof within tan (10) days after the end ofthe term hereof; and provided that Tenant, at Its sole cost and
expense, sW make any repairs occasioned by such removal. Any such nonpermanent fixture not so removed
within such thirty (30) day period shall be deemed abandoned and automatically become the sole property of
the Landlord. Any permitted permanent firturo installed by Tenant shall become the sole property of Landlord
upon the expiration of this Lease.
Landlord shall have, during the term of this lease and any renewals. all applicable non -UCC state
rights, liens and interests, in any and all fixtures installed by Tenant, the game to serve as collateral for Tenant's
obligations hereunder.
Article 14.
Section 14. 1.
Tenant shall have the right, at its sole cost and expense and in conformity with applicable laws and
ordinances, to erect and thereafter, to maintain and/or replace, if it shall so elect, signs on the Demised
16
NICOZISIS TIT2999249 P.17
Premises. All sigoage on, in or around the Demised Premises must be approved by Landlord prior to
instQdon. Any and all permits, licenses or approvals for permitted signage shall be obtained by Tenant at
Tenants sole cost and expense.
Section 14.2. )PRIOR SIGNS
Tenant shall have the right, at its sole risk and expense and in conformity with applicable laws
and ordinances, to erect, maintain, place and install its usual and customary signs and fixtures in the interior of
the Demised Premises All signage on, in or around the Demised Premises must be approved by Landlord
prior to installation.
Article 15 ,
Section 15. 1. ALL RISK INSURANCE
Landlord sball, for the mutual benefit of the landlord and Tenant, as their interests may appear,
maintain ad-rfsk insurance (including rent insurance) on all buildings and improvements constituting the
Demised Premises, which insurance may be carried under a blanket insurance policy. The amount of such
insurance shall not be less than replacement cost of said buildings and improvements less the cost of
excavation, footings and foundations for said buildings. All such insurance shall provide that no cancellation,
reduction or other material changes therein shall be effective until at least ten (10) days after mailing of writtcn
notice thereof to Tenant. Certificates evideacmg all such insurance shall be delivered to Tenant.
Section 15.2. PROCEEDS
In the event of any damage to or destruction of the Dcmised Premises. Landlord shall have sole
authority to adjust the loss and scale all claims with the insurance companies issuing such policies. The parties
hereto do irrevocably assign the proceeds f7om such insurance policies for the purposes hereinafter stated to
Landlord who shall hold same in constructive taut for the benefit of Tenant. for repair, restoration, rebuilding
or replacement, or any combination thereof, of the Demised Premises in accordance with the terms hereoC
Any proceeds in excess of such proceeds as shall be necessary for such repair, restoration, rebuilding,
replacement or any combination thereof dull be the sole property of Landlord.
Section 13.3. SUBROGATION
Landlord and Tenant hereby release each other from any and all liability or
responsibility (to the other or anyone claiming through or under them by way of subrogation or otherwise) for
any loss or damage to property caused by lire or any of the extended coverage or supplementary insurance
contract casualties even if such fire or other casualty shall have been caused by the fault or negligence of the
other party, or anyone for -Abom such party may be responsible; provided. however, that this release shall be
applicable and in force and effect only with respect to loss or damage occurring during such time as the
releasor's policies shall contain a clause or endorsement to the effect that any such release shall not adversely
17
NIc02rs Is 7172999249 P.18
i
affect or impair or prejudice the right of the releaser to mover thereunder. Landlord and Tenant each agree
that their policies will include such a clause or endorsement so long as the same is obtainable for a reasonable
cost ("reasonable cost'.' being defined as any cost not in excess of $250 annually) and if not obtainable, shall so
advise the .other in writing and such notice shall release both parties from the obligation to obtain such a clause
or endorsement.
Article 16..
Section 16. 1. REPAIRS ANT) RFSTORATIUNDEMrcED PREMISES
(1) Landlord agrees that in the event of the damage or destruction of the Demised Premises.
Landlord forthwith shall proceed to repair, restore, replace or rebuild the Demised Premises, including any
improvements trade thereto, to substantially the condition m which the same were immediately prior to such
damage or destruction and Landlord thereafter shall diligently prosecute said work to completion without
delay or interruption except for events beyond Landlord's reasonable control (hereinafter referred to as the
"Repair Period").
(2) During the Repair Period, all rent obligations including Annual Rent, Cummon Area
Maintenance costs, real estate taxes and insurance pawthrough items, shall abate proportionately on a per
square trot basis for that portion of the Demised Premises not available tot usage by Tenant 61 the same or
substantially similar [[tanner as used prior to the occurrence of such damage or destruction; provided,
however that the damage or destruction was RM caused by the intentional act, negligence, or willftd
misconduct of Tenant, or Tenant's social and business invitees, agents, officers or employees.
(3) In the event that said destruction or damage is not caused by the intentional act,
negligence, gross negligence or wiM misconduct of Tenant and the Demised Premises cannot be restored
within ninety (90) days following the occurrence of such destruction or damage, Tenant shall have the option,
between 90 and 105 days following the occurrence of such destruction or damage of notifying Landlord of its
election to terminate the Lease, such termination to be effective upon receipt of such notice by Landlord.
Section 17. 1. TOTAL TAKING
If after the execution of this Lease and prior to the expiration or carlier termination of term hereof the
whole of the Demised Premises shall be token under power of eminent by any public or private authority, or
conveyed by Landlord to said authuriy in lieu of such taking, then this Lease and the term hereof shall cease
and terminate as of the date of such taking.
Section 17.2. PARTIAL TAKING
I£ after the execution of this Leese and prior to the expiration or earlier termination of the term
hereof, any portion of the Demised Premises shall be taken under the power of eminent domain by any public
or private authority or Is conveyed by Landlord to said authority in lieu of such taking which results in a
Is
HICOZISIS 7172999249 P.19
affect or impair or prejudice the right of the releasor to recover thereunder. Landlord and Tenant each agree
that their policies will include such a clause or endorsement so long as the same is obtainable for a reasonable
cost ("reasonable cost'.' being defined as any cost not in excess of 5250 annually) and if cot obtainable, shall so
advise the .other in writing and such notice shall release both parties from the obligation to obtain such a clause
or endorsement.
Article 6
Section 16. 1. REPA_IM AND RESTORATION OF DEMISED PREN MES
(1) Landlord agrees that in the event of the damage or destruction of the Demised Premises,
Landlord forthwith shall proceed to repair, restore, replace or rebuild the Demised Premises, including any
improvements made thereto, to substantially the condition in which the same were immediately prior to such
damage or destruction and Landlord thereafter shall diligently prosecute said work to completion without
delay or interruption except for events beyond Landlord's reasonable control (hereinafter referred to as the
"Repair Period").
(2) During the Repair Period, all rent obligations including Annual Rent, Common Area
Maintenance costs, real estate taxes and insurance pawthrough items, shall abate proportionately on a per
square foot basis for that portion of the Demised Premises not available for usage by Tenant in the same or
substantially similar [Wanner as used prior to the occurrence of such damage or destruction. provided.
however that the damage or destruction was = caused by the intentional act, negligence, or *MU
misconduct of Tenant, or Tenant's social and business invitees, agents, officers or emplo) ccs.
(3) In the event that said destruction or damage is nut caused by the intentional act,
negligence, gross negligence or wsllftl misconduct of Tenant and the Demised Premises cunnot be restored
with6t ninety (90) days following the occurrence of such destruction or damage. Tenant shall have the option,
between 90 and 105 days following the occurrence of such destruction or damage of notifying Landlord of its
election to terminate the Lease, such termination to be effective upon receipt of such notice by Landlord.
Article 17
Section 17. 1. TOTAL TAKING
If after the execution of this Lease and prior to the expiration or earlier termination of term hereoL the
whole of the Demised Premises shall be taken under power of eminent by any public or private authority, or
conveyed by Landlord to said authority in lieu of such taking, then this Lease and the term hereof shall cease
and terminate as of the date of such taking.
Section 17.2. PARTIAL TAKING
I& after the execution of this Lease and prior to the expiration or earlier termination of the term
hereof; any portion of the Demised Premises shall be taken under the power of eminent dumain by any public
or private authority or is conveyed by Landlord to sold authority In lieu of such taking which results in a
is
HIGOZISIS 7172999249 P.20
reduction by 25 % or more of the Demised premises or 40% or more of the improved portion of the
Premises, then Tenant may, at its election, terminate this Lease by giving Landlord notice of the exercise of
Tenant's election within sixty (60) days after Tenant shall receive notice of such taking. In the event of
termination by Tenant under the provisions of this Section 17.2, this Lease and the term hereof shall cease
and terminate as of the date of such taking.
Section 17.3.
In the event of a taking in respect of which Tenant shall not have the right to elect to terminate this
Lease or, having such right, shall not elect to terminate this Lease, this Lease and the term thereof shall
continue in fill force and effect and Landlord forthwith shall, at its expense, subject to the availability of funds
from the condemning authority, make such repairs and alterations as may be necessary in order to restore the
part not taken to usefll condition and the Annual Rent and all other charges characterized as rent, i.e.,
Common Area Maintenance costs, real estate and insurance pastethrough charges, shall be reduced
proportionately as to the portion of the Demised Premises so taken.
Section 17.4. THE AWARD
All compensation awarded for any taking, whether for the whole or a portion of the Demised premises
shall be the sole property of Landlord whether such compensation shall be awarded for diminution in the
value o& or loss of, the leasehold or for diminution in the value 0& or loss of the fee, or otherwise, and
Tenant hereby assigns to Landlord all of Tenant's right and title to and interest in any and all such
compensation. Tenant shall have the right to make an independent claim with any condemning authority for
the value of Tenant'a property and/or moving and relocation expenses so long as (or to the extent that) the
sum awarded to Tenant does not diminish Landlord's award.
Section 17.5. BILEASE
In the event of any termination of this Lease as the result of the provisions of this Article 17, the
parties, effective as of such termination, shall be released, each to the other, from all liability and obligations
thereafter arising under this Lease except for the obligations under Article 10, which shall expressly survive
the termination of this Lease.
Section 18. 1. LANTUM';iUMOUS
In the event: M Tenant, any permitted assignee or subtenant (all of the foregoing being included
whenever `Tenant" is referenced in this Article 19) shall at any time be in default in the pa}rnent of rent,
including but not limited to Annual Rent, or other charges herein required to be paid by Tenant, for a period
of ten (10) days after notice to Tenant m writing of such default and Tenant's fu7ure to cure same within such
ten day period; or (u) Tenant, shall be in default in the observance or performance of any of the I other
covenants and agreements required to be performed and observed by Tenant hereunder for a period of thirty
19
NIC021SIS 7172999249 P.21
(30) days after notice to Tenant in writing of such default and Tenant's failure to cure same within such thirty
day period (or if such non-monetary default shall reasonably take more than thirty (30) days to cure, Tenant
shall not have commenced the same within the thirty (30) days and diligently prosecuted the same to
completion), or (iii) Tenant shall have caused or allowed a monetary or the same non-monetary default to
have occurred more than twice in any twelve month period, whether or not such defaults have been cured by
Tenant, or (iv) within thirty (30) days after the commencement of any proceeding by or against Tenant or
any assignee, whether by the filing of a petition or otherwise, sicking any reorganization, arnogcmcnt,
composition, readjustment, liquidation, dissolution or similar relief under the present or any funlre federal
bankruptcy set or any other present or future applicable federal, state or other statute or law, such proceeding
shall not have been dismissed; then an Event of Default shall have occurred and Landlord :hell be entitled, at
its election, to exercise any one or more of the following rights:
(l) The rent for the entire unexpired balance of the term of this Lease, as well as all other
charges, payments, additional rent, costs and expenses (including reasonable attomeys' tees, but in event not
less than 51,000) herein agreed to be paid by the Tenant, or at the option of the Landlord any part thereof, and
also all reasonable costs and officers' commissions including watchmen's wages and fiurther including the five
percent chargeable by Act of Assembly to the Landlord, shall, in addition to any and all installments of rent
already due and payable and in arrears and/or any other charge or payment herein reserved, included or agreed
to be treated or collected as rent, and/or any other charge, expense or cost herein agreed to bu paid by the
Tenant which may be due and payable and in arrears, be taken to be due and payable and in art ears as if by the
terms and provisions of this Lease, the whole balance of unpaid rent and other charges, payments, taxes, costs
and expenses were on that date payable in advance: and if this Lease or any part thereof is assianed, or if the
premises or any part thereof is sub-let, Tenant hereby irrevocably constitutes and appoints Landlord Tenant's
agent to collect the rents due by such assignee or sub-Tenant and apply the same to the rent due hereunder
without in any way affecting Tenant's obligation to pay any unpaid balance of rent due hereunder; and
(2) This Lease and the term hereby created at the option of the Landlord, shall terminate
and become sbsolutelyvoid without any right on the part of the Tenant to save the forfeiture by payment of
any sum due or by other performance of any condition, term or covenant broken; whereupon, Landlord shall
be entitled to recover damages for such breach in so amount equal to the amount of rent reserved for the
balance of the term of this Lease.
In the event of any default as set forth above, the Landlord, or anyone acting on Landlord's behalf. at
Land lours option:
(a) may without notice or demand enter the Demised Premises without liability
under an action for prosecution or damages for such entry or for the manner thereof, for the propose of
dlstraining or levying and for any other purposes, and take possession of and sell all goods and chattels at
auction, on three (3) days' notice served in person on the Tenant or left on the premises, and pay the said
Landlord out of the proceeds, and even if the rent be not due and unpaid, should the Tenant at any time
remove or attempt to remove goods and chattels from the premises without leaving enough thereon to men
the next periodical payment, Tenant authorizes the Landlord to follow for a period of ninety days after such
removal, take possession of and sell at auction, upon like notice, sufficient of such good* to meet the
proportion of rent accrued at the time of such removal; and the Tenant hereby releases and discharges the
20
HICOZISIS 7172999249 P.22
Landlord, and his agents, from all claims, actions, suite, damages,and pcnalties, for or by reason or on
account of any entry, distraint, levy, appraisement or sale; and/or
( b) may enter the premises, and without demand proceed by distress and Salo of the
goods there found to levy the rent and/or other charges herein payable as rent, and all reasonable costs and
officers' commissions, including watchtrtan's wages end sums chargeable to Landlord, and further including a
stun equal to 5% of the amount of the levy as commissions to the constable or other person making the levy
together with Landlord's reasonable attorney's fees incurred in enforcing Landlord's remedies hereunder,
shall be paid by the Tenant, and in such case all costs, officers' commission and other reasonable charges
shall immediately attach and become part of the claim of Landlord for rent, and any tender of rent without
said costs, commission and reasonable charges made after the issue of a warrant of distress shall not be
sufficient to satisfy the claim of the Landlord. Tenant hereby expressly waives in favor of Landlord the
benefit of all laws now made or which may hereafter be trade regarding any limitation as to the goods upon
which, or the time within which, distress is to be made after removal of guods, and further relieves the
Landlord of the obligations or proving or identifying such goods, it being the purpose and Intent of this
provision that all goods of Tenant, whether upon the Demised Premises or not, shall be liable to distress for
mt. Tenant waives in favor of Landlord all rights under the Act of Assembly of April 6, 1951, P.L. 69,
and all supplements and amendments thereto that have been or may hereafter be passed, and authorizes the
sale of any goods distrained for rent at any time afler five days from said distraint without any appraiscment
and/or condema2tion thereof
The Tenant further waives the right to issue a Writ of Replevin under the
Pennsylvania Rules of Civil Procedure, No. 1071 et e. and laws of the Commonwealth of Pennsylvania, or
under any other law previously enacted and now in force, or which may be hereafter enacted, for the
recovery of any articles, household goods, furniture, etc., seized under a distress for rent or levy upon an
execution for rent, damages or otherwise; all waivers hereinbefore mentioned are hereby extended to apply
to any such action; and/or
(c) may least said Demised Premises or any part or parts thereof to such person or
persons astray in Landlord's discretion seem best and the Tenant shall be liable for any loss of rent for the
balance of the then current term.
If rent and/or any charges hereby reserved as rent, minimum, additional or otherwise, shall remain unpaid on
any day when the same ought to be paid, Tenant hereby empowers any Prothonotary, Clerl, of Court or
attorney of any Court of Record to appear for Tenant in any and all actions which may be brought for rent
and/or the charges, paymems, costs and expenses reserved as rent, or agreed to be paid by the Tenant and to
sign for Tenant a warrant of attorney for the recovery of rent plus all other charges (including Common Area
maintenance charges and Tenant's prorate share of real estate taxes), payments, costs and expenses, and in
said warrant or suit to CONFESS JUDGMENT against Tenant for all or any part of the rent specified in this
Lease and then unpaid including, at Landlord's option, the rent for the entire unexpired balance of the term of
this Lease (including all accelerated sums), and/or other charges, payments, costs and expenses reserved as
rent or agreed to be paid by the Tenant, and for interest at the rate of one and one-half percent (1 1/29'x) per
month from the date of delinquency and all costs together with an attorney's commission of fifteen percent
21
HICOZISIS TI72999249 P1. 2X
{
I
(15 %) Of the total amount due (including Interest and costs) but in no cvent less than $ 1,000. 00. Such
Authority shall not be exhausted by one exercise thereof; but judgment may be confessed as aforesaid from
time to time as often as any of said rent and/or other charges,
Payments, costs and expenses, reserved as rent shall 611 due or be In arrears, and such powers may be exercised
as well after the expiration of the original team and/or during any extenslon or renewal of this Lease. Interest
at the above stated rate shall continue to accrue on any and all outstanding sums due to Landlord
notwithstanding the entry of judgment.
When this Lease shall be terminated by coodmon broken, either during the original term of this Lcaw or
any renewal or extension thereof; and also when and as soon as the term hereby created or any extension
thereof shall have expired, it shall be lawful for any attorney as attorney for Tenant to CONFESS JUDGMENT
in EJECTMENT against Tenant and ail persons claiming under Tenant for the recovery by Landlord of
possession of the herein Demised Premises, for which this Lease shall be his suDiclent warrant, whereupon, if
Landlord so desires, a writ of Execution or of Possession may issue forthwith, without any prior writ or
proceedings whatsoever, and provided that if for any reason after such action Shan have beta commenced the
same shall be determined and the possession of the ' premises hereby Detrrwd remain In or be restored to
Tenant, Landlord shall have the right upon any subsequent default or defaults, or upon the termination of this
Lease as hereinbefore set forth, to enter successive judgmeats to recover possession of the said premises; the
abnity to CONFESS JUDGMENT in EJECTMENT contained herein not being exhausted by the single at
multiple use thercot
If proceedings shall be commenced by Landlord to recover possession under the Acts of
Assembly, either at the end of the term or sooner tacmioation of this Lease, or for nonpgment of rent or
any other resson to the extent applicable, if at all, Tenant speci&can)
waives the right to the three months' notice and/or the fifteen or thirty days' notice required by the Act of
April 6, 1951, P.L. 69, and any and all amendments thereto. Tenant alto ecpressly agrees to pay for all of
Landlord's reasonable costs and expenses, including but not limited to attoroey's fees, incurred by landlord
in the enforcement of any or all of his rights hereunder. No reference to any specific right or remedy shall
preclude Landlord from exercising any other right or from hmiug any other remedy or farm maintaining any
action to which h may otherwise be entitled at law or in equhy.
IN CONJUNCTION 14Tnl THE AUTHORIZATION 10 CONFESS JUDGEMENT
AGAINST THE UNDERSIGNED CONTAINED IN TIIIS LEASE AGREEMENT T HE
UNDERSIGNED DOES HEREBY KNO%V;GLY, VOLUNTARILY AND WrENTIONALLY
ACKNOWLEDGE, CONSENT AND AGREE AS FOLi.OW&
THE UNDERSIGNED ARE FULLY AWARE OF THE RIGHTS OF THE LNDERSIGNED
TO PRIOR NOTICE AND HEARING ON T HE %'ALIDrn' OF AM' CLAIMS THAT MAY BE
ASSERTED AGAINST THE UNDERSIGNED BY THE. LAPIDLORD OR ITS ASSIGNEE UNDER
THIS LEASE AGREEMENT BEFORE JUDGMENT CAN BE ENTERED AND BEFORE ASSETS
OFT HE UNDERSIGNED CAN BE CARNISHED AND ATTACREDt
22
r1ICOZISIS 7172999249 P.24
THE UNDERSIGNED IS FULLY AWARE THAT BY AUTHORIZING CONFESSION OF
JUDGMENT, T HE UNDERSIGNED ARE GIVING UP THE RIGHT OF THE UNDERSIGNED
TO ANY NOTICE OR OPPORTUNITY TO BE HEARD PRIOR TO THE ENTRY OF
JUDGNIE.I£NT IN FAVOR OF LANDLORD OR ITS ASSIGNEE AND PRIOR TO
GARNISMaNT AND ATTACHM IENT.OF ASSETS OF THE UNDERSIGNED;
THE UNDERSIGNED IS FULLY AWARE THAT BY AUTHORIZRVG CONFESSION OF
JUDGMENT, THE UNDERSIGNED IS ALSO GIVING UP THE RIGHT OF T RE
UNDERSIGNED TO ANY NOTICE OR OPPORTUNITY TO BE BEARD PRIOR TO T HE
ENTRY OF JUDGMENT IN EJECMIENT AND PRIOR TO EXECUTION ON SUCH
JUDGMENT IN EJEMIEENT WHICH MAY INCLUDE THE FORCIBLE EVICTION OF TAE
UNDERSIGNED;
TIM UNDERSIGNED DOES HEREBY VOLUNTARILY AND KNOWINGLY
WAIVE ALL DUE PROCESS RIGHTS TO PRE-JUDGMENT NOTICE AND HEARING;
THE UNDERSIGNED REPRESENTS AND WARRANTS THAT TIIIS LEASE
AGREEMENT REPRESENTS A CON Al1IItCLAL TRANSACTION.
THE UNDERSIGNED ACKNOWLEDGES THAT IT HAS HAD T HE BENEFIT OF
COUNSEL IN REVIEWING THIS LEASE AGREEMENT OR THAT IT HAS BEEN GIVEN AN
OPPORTUNITY TO DO SO AND HAS KNOWINGLY WAIVED THE SAME.
Section 18.2. LANDLORD'S SELF-HELP
If Tenant shall defanh in the performance or observance of any agreement or condition in this Lease
contained on its part to be performed or observed and shall not cure such default within thirty (30) days
after notice from Landlord specifying the default (or if such default shall reasonably take more than thirty
(30) days to cure, shall not have commenced the same within the thirty (30) days and dillgeot}y prosecuted
the same to completion), Landlord may, at its option, without weiviag any claim for damages for breach of
agreement, at any time thereafter cure such default for the account of Tenant, and any reasonable amount
paid or any contractual liability incurred by Landlord in so doing shall be deemed paid or incurred for the
account of Tenant and Tenant agrees to reimburse Landlord therefor and save Landlord harmless therefrom;
provided that Landlord may cure any such default as aforesaid prior to the expiration of said waiting period,
without notice to Tenant, if any emergency situation exists, or after notice to Tenant, if the curing of such
default prior to the expiration of said waiting period is reasonably necessary to protect the Dernised
Premises or Landlord's interest therein. or to prevent injury
or damage to persons or Property. If Tenant
shall fart to reimburse Landlord upon demand for any amount paid for the account of Tenant hereunder, said
amount shall be added to and become due as a part of the next payment of rent due hereunder.
23
HICO21SIS 7172999249 P.23
Section 19. 1. SUBORDINATION
(a) Tenant hereby agrees that, subject to the provisions of 19. 1( b) below, this Lease shall.
at all times, be subordinate and junior to any current or future ftoancing of landlord and Tenant shall execute,
within ten (10) days after submission, any document requested by Landlord and/or Landlord's lender
evidencing such fact including but not limited to certifications of no offsets or defenses. Landlord shall not be
obligated in any manner to
execute any document subordinating he rights or privileges to any lender of Tenant including but not limited
to the execution of any Landlord waivers.
(b) Tenant hereby subordinates this Lease to the lien of any deed of trust, mortgage or
mortgages now or hereafter placed upon Landlord's interest in the Demised Premises; provided however, that
this self-executing subordination shall only be operative w long as no default by Landlord, order any deed of
trurt, mortgage or mortgages, shall affect Tenant's rights not disturb Tenant's occupancy under this Lease
nor cause Tenant to be named in any foreclosure proceeding as a party defendant therein if Tenant
substaatially performs the obligations imposed upon Tenant hereunder within the applicable grace or cure
period. Tenant shall execute any appropriate Instrument presented to Tenant for the purpose of effecting
such subordination.
Section 19.2. QUIET NJO)aqpa
Landlord covenants and agrees with Tenant that upon Tenant paying the rent and observing and
performing all of the terms, covenants and conditions on Tenant's part to be observed and performed
hereunder, Tenant may peaceably and quietly have, hold, occupy and enjoy the Demised Promises without
hindrances or molestation from Landlord or any persons lawfully claiming through Landlord.
Section 19.3. GOOD TITLE
Landlord represents, warrants and covenants to Tenant that all of the following representation;
warranties and covenants are true as of the date hereof and shad be true as of the Commencement Date and
thereafter while this Lease remains in effect, upon which representations, tvatranties and covenants Tenant
has relied in the execution of this Lease:
(a) Landlord la the owner of the Demised Premises in fee simple absolute; and
(b) Landlord has full tight and lawful authority to execute this Lease for the terns, in the
manner, and upon the conditions and provisions herein contained.
24
NICOZISIS 7172999249 P.26
Ce20.
Section 20. L RIbffWAL PERIOD
Subject to the provisions of Article 3 hereof: all of the terms, provisions, covenants and agreements in
this Lease contained shall apply during any renewals or extensions of the original term hereof.
Section 20.2. HOLDING OVER
to the event that Tenant or anyone claiming under Tenant shall continue occupancy of the Demised
Premises after the expiration of the term of this Lease without any agreement in writing between Landlord and
Tenant with respect thereto, such occupancy shall not be deemed to extend or renew the term of this Lease,
but such occupancy shall continue as a tenancy at will from month to month upon the covenants, provisions
and conditions herein contained however the Annual Rental in effect during such holdover period shall equal
150% of the Annual Rent payable immediately prior to the expiration of the then-current term. but shall be
payable monthly, together with Tenaties Proportionate Share of the Common Area Maintenance colts.
Section 20.3. WAIWg,1
Failure of either party to complain of any act or omission on the part of the other party, no matter how
long the same may continue, shall not be deemed to be a waiver by said party of any of its rights hereunder.
No waiver by either party at any time, express or implied, of any breach of any provision of this Lease shall be
deemed a waiver of a breach of any other provision of this Lease or a consent to any subsequent breach of the
same or any other provision. If any action by either party shall require the consent or approval of the other
party, the other party's consent to or approval of such action on any one occasion shall not be deemed a
consent to or approval of said action on any subsequent occasion or a consent to or approval of any other
action on the same or any subsequent occasion. Any and all rights and remedies which either party may have
under this Lease or by operation o£law, either at law or in equity, upon any breach, shad be distinct, separate
and curmrlative and shall not be deemed inconsistent with each other; and no one of them, whether exercised by
said party or not, shad be deemed to be an exclusion of any other; and any two or more or all of such rights and
remedies may be exercised at the same time.
Section 20.4. NOTICES
All notices and other communications authorized or required hereunder shall be in writing and shall be given by
moillug the same by certified mad or registered mail, return receipt requested, postage prepaid or via Federal
Express or other recognized overnight delivery service, and any such notice or other communication shall be
deemed to have been given when received by the party to whom such notice or other communication shad be
addressed, or on the date noted that the addressee has refused delivery or on the date that the notice is
returned to sender due to the inability of the messenger or letter carrier to deliver. If intended for landlord,
the same shall be mailed to the address hereinabove set forth with a concurrent copy to Ph.4 Nicozisis, CIR
Po Box 8910 Camp Hill, Ps 17001, or such other address as Landlord may hereafter designate by notice to
Tcnant, and If intended for Tenant, the same shall be marled to Tenant at its corporate headquarters presently
25
NICOZISIS 7172999249 P.01
located at same address provided herein, or to such other address or addresses as Tenant may hereafter
designate by notice to Landlord provided such address is a street address and not a post office box with a
concurrentcopy to
section 20.3. PLATE CLAM
Tenant shall replace, at its expense, any and all plate glass damaged or broken from any cause in and
about the Demised premises unless caused by Landlord's negligence or tbat of its employees, agents or
servants.
Section 20.6. FORCE MAMM
in the event that Landlord or Tenant shall be delayed or hindered in or prevented from the performance
of any act (other thin Tenant's obligation to make payments of Annuli Rent, additional rent, and other charges
required hereunder), by reason of strikes. lockouts, unavailability of materials, failure of power, restrictive
Governmental laws or regulations, riots, Insurrections, the act, fiuilure to act, or defauh of the other party, war
or other reason beyond its control, then performance of such act shall be excused for the period of the delay
and the period for the performance of such act shall be extended for a period equivalent to the period of such
delay. Notwithstanding the foregoing, lack of funds shaft not be deemed to be a ause beyond control of
either party.
Section 20.7. ESTOPPEL CFATIFICAM
At any time and from time to time, Landlord and Tenant each agree, upon request in writing from the
other, to execute, acknowledge and deliver to the other or to any person designated by the other a statement in
writing certifying that this Lease is a modified and is in Sill force and effect, or if there have been
modifications, that the same is in full force and effect as modified (stating the modifications). that the other
parry is not in deft tuh in the performance of its covenants hereunder, or If there bave been such defauhs,
specifying the sane and the dudes to which the rent and other charges have been paid.
Section 20.8. MgMAIM
Simultaneously herewith, Landlord and Tenant have entered into a Memorandum of Lease for
recording in the form attached hereto and made a part hereof as Exhibit "B " supplementing this Lease, such
recording to be at the sole cost and expense of Landlord.
Section 20.9. DrVAr M TY OF PARTICULAR EBOVISI
26
NICOZISIS T1T2999249 r.OS
if any term or provision of this lease or the application hereof to any person or circumstance shall, to
any extent, be itrvalid or unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or cinvmstances other than those as to which k is held invalid or unenforceable, shall
not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law. In the event of an ambiguity, no negative inference shall be drawn against the party
whose counsel drafted this Lease or the provision(s) containing the ambiguity.
Section 20. 10. cAEaQNsAND QEFINITMM
The captions of the sections of this Lease are for convenience only and are not a pan of this Lease
and do not in any way limit or amplify the terms and provisions of this Lease. The word "Landlord" and the
pronouns refining thereto, shall mean, where the context so admits or requires, the persons, firm or
corporation named herein as Landlord or the mortgagee in possession for the time being of the land and
building comprising the Demised Premises. The word "rent" as used berein shall be deemed to include
Annual Rcpt, additional rent and any and all other charges, fees, expenses or costs, payable by Tenant tinder
this Lease. Any pronoun shall be read in the singular or p1mal number and in such gender as the context may
require. Except as in this Lease otherwise provided, the terms and provisions of this Lease shall be binding
upon and inure to the bcnefir of the parties hereto and their respective heirs, successors and assigns.
Nothing contained herein sham be deemed or construed by the parties hereto nor by any third party as
creating the relationship of p6cipal and agent or of partnership or of joint venture between the parties hereto,
it being understood and agreed that neither any provision contained herein, nor any acts of the parties hereto,
shall be deemed to create any relationship between the parties hereto other than the relationship of Landlord
and Tenant.
Section 20. 11. BROKERAGE
Landlord and Tenant represent and warrant each to the other that each has not dealt with any real estate
agent or broker in connection with this transaction other than CIR and agree to indemnify and save each other
harmless from and against all loss, cost and c.Vense inured by reason of the breach of such representation
and warranty.
Section 20.12. F.N 11V ACRFEMM
This instrument contains the entire and only agreement between the parties, and no oral statement or
representations or prior written matter not contained in this mstnunent shall have any force and effect. This
Lease shall not be modified in any w+y except by a uritiog executed by both parties. The parties agree that if
there exists a latent or patent ambiguity in this Lease, such ambiguity shall not be construed again the
drafter/scrivener of this Lease.
Section 20.13. TOLUN , OF LASE TERM
In the event the Annual Rent shall completely abate pursuant to the terms of this txase, the term of
this Lease, and/or the option term(s), as the case tray be, shall ton ror the period of such abatement, in which
27
NIGOZISIS 7172999249 P.01
event the monthlyiostallments of Annual Rent, followiag the end of the period of such abatement, shall
recommence and thereafter continue at the same rental rate that was in effect at the time of such abatement,
the remaining scheduled Annual Real increases shall be postponed for the period of such abatement to reflect
such tolling, the expiration date of this Lease and the optional term(s) shall be extended for the period of
such abatement.
Section 20.14. LATE CHA_&M
In the event Tenant fails to pay any installment of Annual Rent when due, Tenant shall pay a late char
me equal to S % of the missed payment which shall be paid together with the missed payment but in no event
later than fifteen (15) days following the original due date. In the event Tenant tails to pay any amount when
due, whether Annual Rent or any other fee, cost, expense or charge hereunder, then interest shall accrue on
such overdue amount from and after the fifteenth (13th) day such amount has not been paid Interest shall
accrue at the rate of one and one-half percent (1 1/2%) per month during such period. Such interest rate
shall continue to apply on all sums due and owing to Landlord notwithstanding the entry of
judgment in favor of Landlord and against Tenant and irrespective of the occurrence or non-occurrence of an
Event of Default.
Section 20.13. S,E(J= DEPOSff
A Security Deposit shall be collected and deposited by Landlord at lease execution, and held by
Landlord as security for the full and faithful performance by Tenant of all the terms, covenants and conditions
of this Lease to be kept by Tenant and performed during the term hereof. Notwithstanding anything to the
contrary contained in any law or statute now existing or hereafter passed: (i) Tenant shallnot be entitled to
any interest on the Security Deposit; (ii) Landlord shall not be obligated to hold the Security Deposit in trust
or in a separate accoua% and (iii) Landlord shall have the right to commingle the Security Deposit with its
other fiords.
B. Notwithstanding the provisions of 20.15.A, in the event that Tenant exercises its option to
renew the term as provided in Section 3.1 hereof then the security deposit required hereby shall be applied by
Landlord to the first month's rent of the renewal term and no further security deposit need be made unless a
monetary default clud have occurred at any
time during this Lease or any renewal hereof, irrespective of Tenant's cure ofsame, then the provisions of
Section 20.15.A shall remain in full force and affect.
C. In the event Tenant fags to keep and perform any of the terms, covenants, and conditions of this
Lease to be kept and performed by Tenant, then Landlord, at Landlord's option, may appropriate and apply
the Security Deposit, or so mouth thereof as may be necessary to pay any rent or other sums due hereunder for
which Tenant has failed to pay or to reimburse Landlord, or any amounts which Landlord has expended as a
result of Tenant's More to perform its obligations hereunder. Should the entire Security Deposit, or any
portion thereo& be appropriated and applied by Landlord, then Tenant upon the written demand of I mdlord,
shall remit to Landlord a sufficient amount in cash to restore the Security Deposit to the sum deposited
consistent with the terms of this Lease, and Tenant's failure to do so within ten (10) days after receipt of
Landlord'a demand therefor shall constitute a defauh under the terms of the Lease. Upon Tenant's full and
29
NICO2ISIS 7172999249 p,02
fiithU performance end compliance with all of the tetras, covenants and conditions of this Lease, upon the
expiration of the Lease and Tenants surrender of the Demised Premises in compliance with the terms of the
Lease, the Security Deposit shall be returned to Tenant.
Section 20.16. SUBMISSION OF FAc NOOPTION
The submission of this Lease by Landlord to Tenant for examination does not constitute a reservation
of or option in favor of Tenant for the leasing of the Demised premises, and this Lease shall become effective
only upon execution and delivery thereof by Landlord.
Section 20.17. APPLICABLE LAyy
This Lease shall be governed by and construed in accordance Kith the laws ofthe Commonwealth of
Pennsylvania and any and all actions or litigation pertaining to this Lease shall be brought solely in the Court
of Common Pleas of Cumbgd=d County, or if based on federal law, in the U.S. District Court for the Middle
District of Pennsylvania.
Section 20.18.
In consideration of Landlords execution of this Lease at the request of the undersigned and in further
vshuble consideration paid, the receipt of which is hereby acltnowlcdgod, the undersigned Guarantor
unconditionally guarantees to Landlord, and its successors and assigns, the payment and collection of the
rents and other amts provided for in this Lease and the performance of all conditions contained therein on the
pact of the Tenant.
Guarantor hereby waives presentment for payment, demand for payment, notice of nonpayment or
dishonor, protest and notice ofprotest, and any other formalities that may be legally required to charge it wish
liability; and Guarantor further agrees that his liability hereunder shall not be impaired or alfectod by any
renewals, waivers, or extensions of any default or the times ofpayment and performance required under this
Lease, nor by an forbearance, recasting, assignment of subletting of the Demised Premises, or modifications
of the terms of this Lease.
Guarantor covenants to pay all reasonable expenses, including attorneys fees (but in no event less than
$1,000), that may be incurred by Landlord or its heirs, successors or Assigns while enforcing any terns oft his
Guaranty and reaffirm that all terms and conditions binding Tenant hereunder, including but not limited to an
confession of judgment provisions, shall be fully enforceable against Guarantors as if said Guarantor was the
Tenant.
This Guaranty shall bind the successors, assigns, trustees and receivers of the Guarantors and shall not
be impaired or affected by the insolvency of the Guarantor.
29
HICO2ISIS 7372999249 P.OE
This Guaranty is absolute, unconditional, and continuing and payment of the sums for which the
undersigned become liable shall be made at the office of Landlord or its
successors or.assigns u they become due or are declared due. Notwithstanding the foregoing, the liability of
the Guarantors shall not exceed, after demand is made of Guarantors therefore by
Landlord, an amount equal to: six (6) months of the Annual Rent, applicable Common Area Maintenance Costs
for such six (6) month period and any and all other charges, costs, fees, Maintenance Costs, expenses or rent
due hereunder applicable for such six (6) month period, provided however, a demand upon Guarantors, a
payment by same sati*Wg in whole or in part such demand and a subsequent agreement Aith Tenant whereby
Tenant continues to pay Annual Rent or other charges characterized as rent, shall not diminish the Guarantors'
six month damage cap. in other words, the six month damage cap shall be reinstated in fulL in the event a
subsequent agreement is arrived at for Tenant to continue to observe its obligations under the Lease.
Section 20.19. PRODUCT XCr tSn=. M NSION OF PRODUCT LINE
A. Daring the term hereof including any renewal term Landlord rian not lease any Portion of the
Shopping Center to any person, firm, partnership, corporate or joint venture
which shall sell at the Shopping Center Bingo gaming. The foregoing provision shall not he applicable to any
existing tenant, lease or renewal(s) thereof.
B. Tenant shall not, without the prior written approval of Landlord, expand Tenant's product line
to include products other than Bingo Gaming. Landlord's approval shall not be unreasonably withheld or
delayed unless such expansion of Tenant's product line competes with the product line of & than-existing tenant
of the Shopping Center or the product line, in the sole and absolute deterntimation of the Landlord is
detrimental to the operation of the Shopping Center.
Section 20.20 MISCELLANEOUS
Anything contained in this Lease to the contrary notwithstanding, should an Event of Default occur and
should the Landlord exercise its remedies, Landlord agrees to use good faith and reasonable efforts to mitigate
its damages. Except for Sections 12.1 and 20.19.B., whose specific terms shall govern, in all matters under
this Lease as to which either party is granted di=ction with regard to the doing of any act, the incurring of any
expense, or the granting of any consent, approval, permission or agreement, such party shall always be deemed
to be required to act in good faith and reasonably, and such party shall not unreasonably withhold or delay its
consent, approval, permission or agreement, and all aspects of this Lease shall always be construed in
accordance with such requirements.
30
HICO2ISI9 Ti T2999249 P. 134
(CONTINUED ON NEXT PAGE)
IN WITNESS WHEREOF, imtendbag to be legally bond hereby, the parties hereto have executed this
Lem the day and year first above written by their rerpeetive officers thereunto duly authorised.
ATTEST:
BY:
Name:
Title.
BY.
Name.
Title:
GUARANTOR:
BY:
Name:
Title:
BY: /111?O
Name: ?AV.O L, /C?iLGNA+J
Title: o wn+.rt./ Dar
BY:
Name:
Title:
BY:
Name:
BY:
Nam:
Titles
BY:
Name:
31
BY: 0D
Name: 'J' *wla Biu.vil.J
Title: an, der PaCS.Oa+v?
OCT-05-1988 TUE 0508 Ph T H 6 S, P. C. FAR 110, 610 381 1805 P. 10/18
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VERIFICATION
1, > 5N1COZISIS, an individual with corporate authority to execute the within
Verification on behalf of Dixielu, Inc., verify that the facts set forth in this Complaint in Confession
of Judgment for Money arc true and correct to the best of my knowledge, information and belief. I
understand that false statements herein are made subject to the penalties of IS Pa. C.S.A. §4904,
relating to unsworn falsification to authorities
Date: 10 I 5-bg
DIX1111.1, INC.
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% SHERIFF'S RETURN - REGULAR
CASE NO: 1999-06249 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DIXIELU INC
VS.
DBI MANAGEMENT ET AL
SHANNON SUNDAY , Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within NOTICE UNDER RULE 2967, was served
upon DBI MANAGEMENT the
defendant, at 15:17 HOURS, on the 15th day of October ,
1999 at 825 PENNSYLVANIA AVE.
,
LEMOYNE, PA 17043 CUMBERLAND
County, Pennsylvania, by handing to DAVID BILLMAN
a true and attested copy of the NOTICE UNDER RULE 2967,
together with PETITION TO STRIKE JUDGEMENT, NOTICE UNDER RULE ,
2958.3 OF JUDGEMENT AND EXECUTION COMPLAINT IN CONFESSION OF JUDGMENT FOR
ar.d at the same time directing His attention to the contents McRtf.
Sheriff's Costs: So answers:
Docketing 18.00
Service 9.92
Affidavit .00 YYY
Surcharge 8.00 , oneLIEL
$3?9Z-TA L RUDDERS & SORRENTINO
1018 1J99
by L6.
LJUPULY 5
Sworn and subscribed to before me
this 9 w day of Jeuw?u--
19q_ A.D. ?p
SHERIFF'S RETURN - REGULAR
CASE NO: 1999-06249 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
DIXIELU INC
VS.
DBI MANAGEMENT ET AL
SHANNON SUNDAY , Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within NOTICE UNDER RULE 2967, was served
upon BILLMAN DAVID L the
defendant, at 15:17 HOURS, on the 15th day of October ,
1999 at 825 PENNSYLVANIA AVE
LEMOYNE, PA 17043 CUMBERLAND
County, Pennsylvania, by handing to DAVID BILLMAN
a true and attested copy of the NOTICE UNDER RULE 2967,• ,
together with PETITION TO STRIKE JUDGEMENT, NOTICE UNDER RULE ,
2958.3 OF JUDGEMENT AND EXECUTION COMPLAINT IN CONFESSION OF JUDGMENT FOR
and at the same time directing His attention to the contents thereofMONEY
Sheriff's Costs: So an
?1
Docketing 6.00 i?
Affidavit .00
Surcharge 8.00
1018 1, HUDDERS & SORRENTI
NO
99
by ,,?,Q?
?
?• Sfit?PYfL
DePULY Sworn and subscribed to before me
this 9a?_ day of ,( 1;•
19A.D.
{?• •t•> YZSC7T6Tiaf/
k
R. Thomas Kline, Sheriff, who being duly sworn according to
law, states this writ is returned ABANDONDED. No action has been taken
in the last six months.
Sheriff's Costs:
Docketing $18.00
Law Library .50
Prothonotary 1.00
Service 3.10
Garnishee 9.00
Surcharge 8.00
Levy 20.00
Poundage 1.19
$60.79
Sworn and subscribed to before me
This aa., 4 day of 71trw
2000, A.D.( cam 71t?Ppt??h
P othonotary
blNy?? cuN3d
ss, yd 00 n ht 130
A. ?..' ..,lilt
.4elaaHs 5111 Jo 3"jieeo
Advance Costs: $150.00
Sheriff's Costs: 60.79
$ 89.21
Refund to atty on 5/3/00
R. Thomas Kline, Sheriff
B
Deputy Sheriff
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA) NO. 99-6294 CIVIL 19 _
COUNTY OF CUMBERLAND) CIVIL ACTION . LAW
TO THE SHERIFF OF Cumberland COUNTY:
To satisfy the debt, interest and costs due Diane R. Delancey
from William A. Delancey
P.O. Rnx 461
Nampa, ID 83653 DEFENDANT(S)
(1) You are directed to levy upon the properly of the delendant(s) and to
(2) You are also directed to attach the properly of the defendant(s) not levied upon In the possession of
FattAt-N of Jmaes Allen Delancey II c/o William P Douglas Esq 27 W Hiqh St
Carlisle. PA 17013
GARNISHEE(S) as follows:
Interest of William A. Delancey as heir of James Allen Delancey II, deceased.
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) islare enjoined from paying any
debt to or for the account of the detendant(s) and from delivering any properly of the defendant(s) or otherwise disposing
thereof;
(3) If properly of the defendant(s) not levieduponansubject to attachment isfoundinthepossessionofanyoneolher
than a named garnisheo, you are directed to notify hirwherthat he/she has been added as a garnishee and is enjoined as above
stated.
Amount Due 16,099-48 -- L.L.
Interest
Atty's Comm %
Due Prothy $1.00
Other Costs
Ally Paid $32.50
Plaintiff Paid
Date: October 14, 1999
Curtis R.
Prothonotary, Civil Division
REQUESTING PARTY:
Name Mir}wNl R_ Mindle Esq,.-
Address: 13 N linnnupr St-
rarligl L, PA 17(113 _-`
Attorney for: _PlaintifE._---
by: ?i1?yt?l??O S4>YJY?
Deputy
Telephone: -( 71.7_)-4Ga6545 _-
Supreme Court ID No. 27768