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HomeMy WebLinkAbout03-3380SKYPORT PROPERTIES Plaintiff JENNIFER MCCORMICK, Individually and d/b/a STARSTRUCK STUDIO OF DANCE, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIM SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERiNG A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAlL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FiND OUT WHERE YOU CAN GET LEGAL HELP. RICHARD J. PIERCE, COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE ONE COURTHOUSE SQUARE CARLISLE PA 117013 (717) 240-6200 NOTICA LE HAN DEMANDADO A USTED EN LA CORTE. SI USTED QUIERE DEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGUIENTES, USTED TIENE VEINTE (20) DIAS DE PLAZO AL PARTIR DE LA FECHA DE LA DEMANDA Y LA NOTIFICACION. USTED DEBE PRESENTAR UNA APARIENCIA ESCRITA O EN PERSONA O POR ABOGADO Y ARCHIVAR EN LA CORTE EN FORMA ESCRITA SUS DEFENSAS O SUS OBJECIONES A LAS DEMANDAS EN CONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE DEFIENDE, LA CORTE TOMARA MEDIDAS Y PUEDA ENTRAR UNA ORDEN CONTRA USTED SIN PREVIO AVISO O NOTIFICACION Y POR CUALQUIER QUEJA O ALIVIO QUE ES PEDIDO EN LA PETICION DE DEMANDA. USTED PUEDE PERDER DINERO O SUS PROPIEDADES O OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DiNERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICiNA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. RICHARD J. PIERCE, COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE ONE COURTHOUSE SQUARE CARLISLE PA 117013 (717) 240-6200 SKYPORT PROPERTIES Plaintiff VS. JENNIFER MCCORMICK, INDIVIDUALLY AND d/b/a STARSTRUCK STUD10 OF DANCE, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW COMPLAINT AND NOW comes Plaintiff; Skyport Properties, by and through its Attorney, Mark A. Mateya, Esquire, of counsel with Knupp, Kodak & Imblum, P.C., and avers the following: 1. Plaintiff, Skyport Properties (hereinafter referred to as "Skyport"), is a partnership operating under the laws of Pennsylvania, presently located at 1015 Mumma Road, Wormleysburg, Cumberland County, Pennsylvania. 2. Defendant, Jennifer McCormick, at all times herein mentioned, leased a 3,560 square foot store from Plaintiff for the purpose of use as a dance studio and for incidental retail sales of dance related items located at 6108 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 3. Plaintiff and the Defendant entered into a Lease Agreement dated May 9, 1999, for the rental of the 3,560 square foot studio located at 6108 Carlisle Pike, Mechanicsburg, Cumberland County. A copy of the signed Lease Agreement between the parties is attached hereto as Exhibit "A" and is incorporated herein. 4. Pursuant to Paragraph 4 of the Lease Agreement, the Defendant is to pay rental for the aforesaid studio to the Plaintiff in the amount of T~venty-Five Thousand Eight Hundred Dollars ($25,800.00) per annum in equal monthly installments for the first year; Twenty-Eight Thousand Eight Hundred Dollars ($28,800.00) per annum in equal monthly installments for the second year and Thirty-Two Thousand Four Hundred Dollars ($32,400.00) for the third year. Said payments are due and owing on the first day of each month. 6. Pursuant to Paragraph 8 of the Lease Agreement, Defendant is required to pay "additional rent" for Defendant's share of real estate taxes, CAM expenses and any insurance premium costs for fire and extended coverage insurance for the demised premises paid by Landlord." 7. Defendant is currently indebted to Plaintiff for past due rent and CAM expenses in accordance with the Lease Agreement in the amount of $30,263.18. 8. Plaintiff entered into an agreement dated November 3, 2000, whereby Plaintiff released Sharon Chambers from any and all obligation to the lease agreement. A copy of the agreement is attached hereto as Exhibit "B" and is incorporated herein by reference. 9. Plaintiff has made every reasonable effort to extend time and to negotiate with Defendant to pay the outstanding balance due to the Plaintiff. 10. Defendant has been unwilling to negotiate a settlement agreement with Plaintiff. 11. Plaintiff has expended $587.99 in legal fees from May 28, 2003 through June 17, 2003, in attempting to collect the aforesaid rent that is due and owing from the Defendant to the Plaintiff in accordance with the Lease Agreement. WHEREFORE Plaintiff respectfully requests that this Honorable Court enter judgment in favor of Plaintiff in the amount of $30,263.18 plus costs of suit and such other relief as the Court may deem just. Respectfully submitted, Date: Mark A. ~vlateya, EsqOre of Counsel With Knupp, Kodak & Imblum, P.C. Attorney I.D. No. 78931 407 North Front Street P.O. Box 11848 Harrisburg, PA 17108 (717) 238-7151 VERIFICATION i,Gary L. Nalbandian , hereby verify that the statements made in the foregoing Complaint are true and correct, and further, I understand that false statements therein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. Ghry L. Nalbandian, General Partner Skyport Properties Date LEASE FOR: 6108 CAELI~LE PIKE, MECHANICSBURG, PA LANDLORD: SKYPORT PROPERTIES TENANT: STARSTRUCK STUDIO OF DANCE STORE NO.: 118 & 120 AGENT: JUDY PIERCE LANDLORD), of the one part, and STARSTRUCK STUDIO OF DANCE hereinafter called TENANT), of the other part. BASIC LEASE PROVISIONS The following Basic Lease Provisions embody the agreement of the parties hereto, subject to further terms and conditions 3) Projected Occupancy Date: 4) Rent Commencement Date: 5) Lease Expiration Date: hereinafter set forth elsewhere in this Lease. 1) Term: Three (3) years 2) LANDLORD's Projected completion date: July 20, 1999 September 1, 1999 August 31, 2002 6) Lease year: January to December 7) Fixed minimum rent: Per Sq. ft. Year 1 $7.25 2 $8,09 3 $9,10 September 1, 1999 Monthly Annually $2,150 $25,800 $2,400 $28,800 $2,700 $32,400 8) Percentage rent: None 9) Gross square feet of the leased premises: 3,560 approx, 10) Gross square feet of building in shopping center: 19,600 approx. 11) TENANT'S trade name: Starstruck Studio of Dance 12) Security deposit: Four Thousand Three Hundred Dollars ($4,300) 13) HVAC repair: Tenant after first ninety (90) days 14)Use: Oancestudio ~.4,,~4_ ~ l;~z,-~cc, J~. f-~,~L,~ 15) Exhibits: "A" Site Plan "B" LANDLORD'S Work "C" TENANT'S Work "D" SIGNAGE "E" Waiver of Liens Rider #1 - Commencement Date Rider #2 - Extensions Guaranty WITNESSETH: LANDLORD owns and/or controls certain land situate at the Shopping Center Location and is erecting, or has erected, thereon a shopping center (hereinafter sometimes called "The Center", and sometimes called "The Shopping Center"). TENANT desires to occupy a store in the Center. The Center outlined in black on the Plot Plan attached hereto as Exhibit "A". NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that for the rents reserved, the mutual consideration recited herein, and respectively intending to be legally bound hereby, the parties agree as follows: 1. LEASED PREMISES. LANDLORD does demise, lease, and let unto TENANT, and TENANT does rent and take from LANDLORD, the Leased Premises, as outlined in red on the Plot Plan attached hereto as Exhibit "A", it being understood that all dimensions are approximate, together with the dght to use, in common with all others entitled to such use, all of such parking areas, driveways, footways, and loading facilities in the Center (hereinafter called "Common Areas") intended for common use and benefit as may be provided and designated from time-to-time by LANDLORD, subject, however, to the terms and conditions of this Agreement; the right of LANDLORD from time-to-time to alter the site plan at its sole discretion; to reasonable rules and regulations for the use thereof as prescribed from time-to-time by LANDLORD; present and future restrictions, easements, and any agreements affecting the Leased Premises. Common Areas shall not include any loading areas, driveways, and parking spaces to which any other party is entitled to the exclusive use as determined by LANDLORD. 2. TERM. The term of this Lease shall commence upon the Occupancy Date and shall extend and continue for the Term period from the Occupancy Date. 3. LEASE OF PREMISES. LANDLORD, in consideration of the Rent to be paid and the covenants to be performed by TENANT, does hereby demise and lease unto TENANT, and TENANT hereby leases and takes from LANDLORD, for the Term at the rental, and upon the covenants and conditions herein set forth, the commercial space referred to herein as the Premises situated or to be situated in LANDLORD'S Building, as the case may be as set out in Exhibit "A". 4. LANDLORD'S WORK and TENANT'S WORK. A. LANDLORD shall perform all of the work required to be performed by LANDLORD in the Premises pursuant to the terms and conditions of Exhibit "B" (LANDLORD'S Work). B. TENANT shall perform all of the work required to be performed by TENANT pursuant to the terms and conditions of Exhibit "C" (TENANT'S Work). 5. TENANT ESTOPPEL CERTIFICATE. A. TENANT agrees to at any time and from time-to-time, within ten (10) days after LANDLORD'S wdtten request, to execute, acknowledge and deliver to LANDLORD a written instrument certifying the Occupancy Date, that TENANT has accepted possession of the Leased Premises, and is open for business, that this Lease is unmodified and in full force and effect (or if there have been modifi-cations, that it is in full force and effect as modified and stating the modifications), the dates to which Fixed Minimum Annual Rent, Additional Rent, and other charges have been paid in advance, if any, and stating whether or not to the best knowledge of the signer of such certificate, LANDLORD is in default in the performance of any covenant, agreement or condition contained in this Lease and, if so, specifying each such default of which the signer may or should have knowledge; and certifying such other matters as may be reasonably requested by LANDLORD. B. In the event that TENANT fails to provide a TENANT'S Estoppel Certificate within ten (10) days after LANDLORD'S written request therefore, TENANT does hereby irrevocably appoint LANDLORD as attorney-in-fact of TENANT, coupled with an interest, in TENANT'S name, place and stead to sign and deliver TENANT'S Estopped Certificate as if the name had been signed and delivered by TENANT. 6. RENTS. Starting on the Rent Commencement Date, TENANT agrees to pay, without set-off or deduction for any purpose, all rents, Additional Rent, and other sums payable as rent which are reserved or provided to be paid by TENANT under this Lease. Minimum Rents. TENANT shall pay to LANDLORD the Fixed Minimum Rent as set forth previously in this Lease on the page entitled BASIC LEASE PROVISIONS dudng the term of this Lease and any extension or renewal thereof in equal monthly installments, in advance, on or before the first day of each month. The monthly installments of Fixed Minimum Rent for any portion of a month at the beginning or end of the term shall be apportioned on a pro-rata basis. 7. ENTIRELY DELETED. PERCENTAGE RENT. TEN/~T shall ~ay "Percenteg~ ~,~,~*" ~ h~r~in cl~fir A. The TENANT shall pay as pementage rent a sum equal to the amount, if any, by which five sales, as defined hereunder, made in any Lease Year during the term hereof exceeds the minimum rent gross Lease Year. B. Lease Month. The term "Lease Month" as used herein shall mean each one month commencement of the lease and ending at the termination of the lease which shall include any and all options with the e lease. C. Sales Report. Within fourteen (14) days after the expiration of each Lease LANDLORD a statement, certified as complete and correct by a Certified Public Accountant, for such Lease Month and an itemization of all claimed exclusions therefrom. TENANT shall submit to Gross Sales D. Books and Records. TENANT shall keep and maintain (and shall cause TENANT'S main office full and accurate books of account and records from which shall be conveniently segregated from other business matters. Such records for each Lease (properly totaled and added) for at least six (6) months after the end of such Lease Month. records of daily bank deposits of the entire receipts from transaction in, at, on register tapes; sales books; duplicate bank deposit slips; and bank statements. keep and maintain) at determined and which shall be so kept and maintained books and records so required; ; sales slips; daily dated cash TENANT agrees that all TENANT'S Gross Sales shall be containing locked-in cumulative tapes with cumulation capacity of at least ($99,999). TENANT agrees to notify LANDLORD of the name and serial numbers of any changes or additions thereto within five (5) days after the use thereof has at the time each sale is made, in cash registers Thousand Nine Hundred Ninety-nine Dollars 3t the Leased Premises and E. Inspection and Audit. LANDLORD shall have the right month period, to inspect and audit all such books and records and all TENANT'S Gross Sales. TENANT and each subtenant shall ular business hours, until the end of such six (6)- files of TENANT and any subtenant relating to uest of LANDLORD. If any understated by either: (a) more than one by Twenty-five Dollars ($25) for any Lease Month, investigation. If, at any time within such six (6)-month TENANT'S such books, records, papers, or files, then such determined. ly subtenant's statement was ; or, (b) an amount sufficient to reduce Percentage Rent pay to LANDLORD the full cost of LANDLORD'S audit and shall contend that error may exist with respect to any of shall be extended until LANDLORD'S contention has been finally LANDLORD shall as may be necessary sales of the Shopping Center, in tax cures and related information obtained from TENANT'S records except under this Lease, in connection with prospective financing or prospective any legal requirements. F. Definition of Gross Sales. as used herein means the total amount charged by TENANT or anyone in TENANT'S behalf or by I th any and all sales of merchandise and service to patrons and made or rendered on, in or from the Leased Premises, and sales, whenever made, includin, or merchandise shipped from other locations on orders taken in or through the Leased Premises, or by to the Leased Premises, whether or not such amounts shall be for cash or on credit, including interest, ~nsurance payments, and any other form of payment or increase to be paid by the customer because of a charg payment sale, whether paid or unpaid, collected or uncollected, including, without limiting the generality from all automatic or coin-operated vending machines, toy ddes, games, and any other machines or devices, including telephones, dispensing or sanitary facilities, as shall be permitted in the Leased Premises, whether or not owned or operated by TENANT/, charge or sale upon installment or credit shall be treated as a sale for the full time when TENANT shall receive payment (whethe,,,l~full or partial) therefore provided, however, that there shall be deducted therefrom the following to the extent that the same shall be incl~l~d in TENANT'S computation of sales: / a)~l credits and refunds made to customers for merchandise returned or exchanged; / I;~ ~,!! sums and credits received in tettlament of ~lsims for Iocc or damago to morehondiec sold as eferese~; ai~d 8) all caloc or oxci£o taxe~ impe£od by 3ny governmental bed,! on cuc.,~ cale£ 3nd ~ervi~'e~ w, hich tax, e~ 3re 6.Jd~d to tl,~ price th~r~f~ or ¢ollceted from thc patron or cu.atomcr and paid by TENANT to r_.uch ~lo'~mmontaJ authority, No franchicar capital crock tc~ 3n~ ne in~.~rne ~r ~imii~r ta~ based upon incemo or ~efit¢ a£ such shall be deducted fram 8. ADDITIONAL RENT. In addition to the Fixed Minimum Rent as set forth in this Lease, TENANT agrees to pay to LANDLORD, in advance, without deduction, set-off or abatement, the following additional sums, the payment of which shall be considered as "Additional Rent" hereunder, shall be used for the purpose hereinafter set forth without any accounting therefor to TENANT, and shall be subject to all provisions of this Lease and of law as to default in the payment of rent: Four Hundred Fifty Dollars ($450) per month. A. a) TENANT shall pay in each Lease Year during the term of this Lease, as Additional Rent, a proportionate share of all real estate taxes, ad valorem and assessments, general and special assessments, taxes on real estate rental receipts, taxes on LANDLORD'S gross receipts or any other tax imposed upon or levied against real estate or upon owners of real estate as such rather than persons generally, payable with respect to or allocable to the Shopping Center including all land and all other buildings and improvements situated thereon, together with the reasonable costs (including fees of attorneys, consultants and appraisers) of any negotiation, contest or appeal pursued by LANDLORD in an attempt to reduce any such tax, assessment or charge, the same being collectively referred to herein as "Taxes". b) TENANT'S proportionate share of Taxes shall be paid by TENANT in equal monthly installments in such amounts as are estimated, and billed for each Lease Year by LANDLORD at the Rent Commencement Date and at the beginning of each successive Lease Year dudng the term of this Lease, each such installment being due on the first day of each calendar month. Within sixty (60) days after the end of each Lease Year, or such reasonable (in LANDLORD'S determination) time thereafter, LANDLORD will certify to TENANT the amount of Taxes for said Lease Year, and the amount of TENANT'S proportionate share thereof. The proportionate share paid or payable for each Lease Year shall be adjusted between LANDLORD and TENANT, both LANDLORD and TENANT hereby agreeing that TENANT shall pay LANDLORD, or LANDLORD shall credit to TENANT'S account (or, if such adjustment is at the end of the term of the Lease, pay TENANT), as the case may be, within thirty (30) days of the aforesaid certification to TENANT, such amount necessary to effect such adjustment. The failure of LANDLORD to provide such certification within the time prescribed above shall not relieve TENANT of its obligations generally for the specific Lease Year in which any such failure occurs. c) In addition to TENANT'S proportionate share of Taxes, TENANT shall pay to the appropriate agency any and all sales and excise taxes (not including, however, LANDLORD'S income taxes) levied, imposed or assessed by any governmental body or other taxing authority upon any rent payable hereunder. d) In the event that the first or last Lease Years shall consist of less than twelve (12) full calendar months, the provisions of this Section shall apply, but TENANT'S liability for TENANT'S proportionate share of any Taxes for such shorter Lease Year shall be subject to an equitable adjustment. B. TENANT'S pre rata share of the expenses of maintaining and managing the Common Areas in the Shopping Center shall include, without limitation, all costs and expenses of operating, managing, maintaining, repairing, (including all structural, storafront, and roof repairs performed to the buildings comprising the Shopping Center); a fifteen (15%) percent administrative fee, not including any management or audit fees; lighting, signing, cleaning, painting, striping, policing and security of the Common Areas (including the cost of uniforms, equipment and employment taxes); alarm systems; maintenance of sprinkler systems serving the Common Areas; removal of snow, ice, trash and debris; regulation of traffic; costs and expenses of inspecting and depreciation of machinery and equipment used in the operation and maintenance of the Common Areas and personal property taxes and other charges incurred in connection with such equipment; costs and expenses of repair or replacement of paving, curbs, walkways, landscaping, drainage pipes, ducts, conduits, and similar items, and lighting facilities; costs and expenses of planting, replanting and replacing flowers, shrubbery and planters; costs and expenses incurred in the rental of music program services and loudspeaker systems, including furnishing electricity therefor; costs of providing energy to heat, ventilate and air condition areas in which the Common Areas are located; cost of water and sewer, if not metered separately, services, if any, furnished by LANDLORD for non-exclusive use of all tenants; promotional advertising for entire Center. C. TENANT's pre rata share of the cost of insudng the Shopping Center, including liability insurance for personal injury, death and property damage, insurance against fire, extended coverage, theft or other casualties, workmeo's compensation insurance covering personnel, fidelity bonds for personnel, insurance against liability for defamation and claims of false arrest occurring on and about the Common Areas, plate glass insurance for glass exclusively serving the Common Areas. O. Any provision of this Lease to the contrary notwithstanding at LANDLORD'S option, TENANT shall pay as additional rent, a late charge in the amount of ten (10%) pement of the outstanding delinquent balance for any payment of rent or additional rent not made within five (5) days after the due date thereof to cover the extra expense involved in handling delinquent payment. E. Pro rata share as used in Sub-paragraphs A, B, and C of this section shall be equal to the cost of such expenses, Le. taxes, Common Area Maintenance, insurance, etc. to LANDLORD multiplied by a fraction, the numerator of which is the Gross Square Feet of the Leased Premises, the denominator of which is the Total Cross Square Feet Area of Leasable Space in the Shopping Center. 9. TENANT'S BUSINESS TAXES. TENANT shall pay before delinquency any and all taxes, assessments, license fees, and public charges levied, assessed or imposed upon its business operation, or based upon the use and occupancy of the Leased Premises as well as upon its leasehold interest, trade fixtures, furnishings, equipment, leasehold improvements (including, but not limited to, those required to be made pursuant to TENANT'S Work), alterations, changes, and additions made by TENANT, merchandise and personal property of any kind owned, installed or used by TENANT, in or upon the Leased Premises. In the event any such items of properbJ are assessed with property of LANDLORD, then such assessment shall be equitably divided between LANDLORD and TENANT. LANDLORD shall determine the basis of dividing any such assessments and such determination shall, if not arbitrary or capricious, be binding upon both LANDLORD and TENANT. 10. PLACE OF PAYMENT. TENANT agrees to pay all rents and other sums and charges herein prescribed to be paid by TENANT to LANDLORD'S original address or to such other person or to such other place or places as shall be designated by LANDLORD to TENANT in writing from time-to-time hereafter. 11. UTILITIES. A. TENANT shall promptly pay all charges for telephone, heat, air conditioning, lighting, water, sewer, gas (if supplied), sprinkler service (if any), and all other utilities and utility services used or consumed in or upon the Leased Premises. TENANT shall be responsible for such charges as of the Occupancy Date. LANDLORD does not undertake to supply heat, light, gas, power or any other service or utility leased, except to provide the initial service lines to the Leased Premises. TENANT agrees to contract separately with the apprcpdate utility company for said service or utility. LANDLORD shall not be liable in damages or otherwise, whether or not LANDLORD shall supply a utility service to the Leased Premises, for any interruption or impairment in the supply of such utility service, nor shall any such interruption or impairment constitute a breach by LANDLORD of the terms and conditions of this Lease nor shall any such interruption constitute a ground for an abatement of any sums payable by TENANT hereunder. B. Unless LANDLORD hereafter elects to have TENANT obtain electricity from the public utility company furnishing electricity to the Leased Premises, electricity shall be supplied by LANDLORD to the Leased Premises as may be necessary to service TENANT's equipment and the air conditioning units therein installed as of the Occupancy Date, and TENANT shall pay to LANDLORD, as additional rent for such service, all amounts (hereinafter the "additional rent for electricity") as determined by a meter or submeter system, to be installed by LANDLORD at LANDLORD's expense for the purpose of measuring electricity consumption. Said additional rent for electricity shall be charged and paid monthly, as billed, at terms and rates set forth from time-to-time by the public utility company serving the Leased Premises under the service rate classification applicable to LANDLORD's purchase of electricity, plus an amount equal to one-half of a percent (~%) of the monthly charge as LANDLORD's administrative charge for meter-reading, record keeping, and overhead, if more than one meter or submeter measures the electricity to TENANT, the electricity rendered through each meter may be computed and billed separately in accordance with the above provisions. If any tax shall be imposed upon LANDLORD's receipts from the sale or resale of electricity to TENANT, the pro rata share allocable to the electricity received by TENANT shall be passed on to and paid by TENANT to the extent permitted by law. 12. USE AND OCCUPANCY. Except as otherwise provided in the following sentence, the Leased Premises shall be used only for TENANT'S Use as set forth in the Basic Lease Provisions on Page 1 and for no other purpose whatsoever. In the event LANDLORD shall consent to an assignment of this Lease or to a subletting of the Leased Premises pursuant to Paragraph 23 below, the assignee or subtenant may use the Leased Premises for such other retail sales or service business to which LANDLORD shall consent, provided, however, that in no event shall such assignee or subtenant use the Leased Premises for any use (other than TENANT'S Use) which would violate or be in conflict with the provisions of any lease or other written agreement affecting any portion of the Center then in effect, or any local, state, or federal laws. During the term of this Lease, TENANT shall not directly or indirectly engage in any business which is similar to or competing with TENANT'S Use within a radius of two (2) miles from the outside boundary of the Center. TENANT shall not perform any acts or carry on any practices which may injure the building or be a nuisance or menace to other tenants in the Center or carry on any unlawful activities upon the Leased Premises. 13. TRADE FIXTURES. All trade fixtures installed by TENANT in the Leased Premises shall remain the property of TENANT. All improvements and fixtures installed by TENANT other than trade fixtures shall not be removable by TENANT at or before the expiration or earlier termination of this Lease, and shall become the property of LANDLORD (without any compensation therefore to TENANT). TENANT shall restore any damage to the Leased Premises caused by the removal of its trade fixtures. All trade fixtures installed by TENANT including but not limited to barres, mirrors, and removable dance floor shall remain the properly of TENANT. 14. REPAIRS. LANDLORD will keep only the outside of the Leased Premises, including the roof, storefront, and the structural portions of the Leased Premises in proper rapair. Any work on the structural portions of the Leased Premises requirad by reason of TENANT'S negligence or misuse of Lease Premises will be performed at the expense of TENANT. Structural portions shall be defined as bearing walls, beams, roofs, and the outside portions of the Leased Premises. TENANT will keep inside portions of the Leased Premises in good repair including, but not limited to, all electrical, plumbing, heating, air conditioning (which shall include normal replacement of heating and air conditioning filters at least once a year), signs and other mechanical installation in good order, condition and repair at TENANT'S expense and will surrender the Leased Premises at the expiration of the term, in as good condition as when received, excepting ordinary wear and tear and damage by fire or insured casualty. When used in this paragraph, the term "repair" shall include replacements and renewals when necessary to maintain the Leased Premises and any improvements located thereon in good order and condition, except as expressly provided above LANDLORD shall have no obligation to repair, maintain, alter or modify the Leased Premises or any part thereof, or any plumbing, heating, electrical, air conditioning or other mechanical installation therein. Upon the commencement of the term of this Lease, LANDLORD will assign to TENANT any original warranties or guarantees obtained from manufacturers or installers for heating and air conditioning units or facilities within the Leased Premises. Anything herein contained to the Contrary notwithstanding TENANT shall notify LANDLORD in writing at once of any defective condition known to TENANT, its agents or employees, which LANDLORD is required to repair, and TENANT'S failure to so notify LANDLORD shall make TENANT responsible for damages resulting from such defective condition. Any work done or alteration made by TENANT to structural portions of the Leased Premises shall release LANDLORD of and from any duty to keep and maintain the same in good Order and repair; and TENANT agrees to be solely responsible for and thereafter to repair and to maintain the structural portions of the Leased Premises to Or on which TENANT has caused any work to be done or alteration made. TENANT will obtain from reliable companies and keep in force, the typical service contracts of such companies providihg for the inspection and servicing of the heating and air conditioning equipment. All repairs, and/or replacements made by TENANT shall be of the same quality, design and class as the original work. 15. ALTERATIONS. TENANT will not alter, paint or decorate the exterior of the Leased Premises and will not make any structural alteration to the interior of the Leased Premises without first obtaining LANDLORD'S written approval of such alteration. TENANT will not cut or ddll into or secure any fixtures, apparatus or equipment of any kind to any part of the Leased Premises without first obtaining LANDLORD'S written consent. 16. MAINTENANCE - NO OFFENSIVE PRACTICES. From and after the Occupancy Date. TENANT will keep clean and replace, if necessary, all glass in the doors and windows of the Leased Premises; maintain the Leased Premises in a clean, orderly, and sanitary condition; will not permit accumulations of garbage, trash, rubbish and other refuse, and will remove the same at TENANT'S expense; will keep all refuse in proper containers on the intedor of the Leased Premises until removed; will not use any apparatus for sound reproduction or transmission or any musical instrument in such manner that the sounds so reproduced, transmitted or produced shall be audible beyond the interior of the Leased Premises; will keep all mechanical apparatus free of vibrations and noise which may be transmitted beyond the confines of the Leased Premises; will not cause or permit objectionable odors to emanate or be dispelled from the Leased Premises; will comply with all laws, ordinances, rules and regulations of governmental authorities (including without limitation all fire, electrical and sign codes) and all recommendations of the Association of Fire Underwriters with respect to the use or occupancy of the Leased Premises (including. without limitation, the maintenance of all fire extinguishers); will not receive or ship articles of any kind except through the facilities provided for that purpose by LANDLORD; and will conduct TENANT'S Use at the Leased Premises in all respects in a dignified manner and in accordance with high standards of store operation as determined by LANDLORD; will install and connect a water meter, and to pay all water and sewer charges if billed separately. LANDLORD acknowledges that minimal vibration and the playing of music at reasonable audible levels for TENANT'S intended use will not be considered a violation of this clause or the Lease. TENANT shall keep the display windows and signs, if any, in the Leased Premises well lighted, and shall keep the Leased Premises open for business, at least during the same days, nights and hours as the majodty of the stores located in the Center, but at least dudng the regular customer days and hours for similar businesses in the trade area in which the Center is located. TENANT shall not store, exhibit, offer to sell or sell any goods, wares or merchandise on or from the Common Areas, or on or from any other place in the Center besides the intedor of the Leased Premises, without LANDLORD'S prior consent. TENANT will not place or maintain on the exterior of the Leased Premises any sign not provided for in Exhibit "D" hereto without first obtaining LANDLORD'S written approval thereof. 17. CONTROL OF COMMON AREA. All Common Areas shall at all times be subject to the exclusive control and management of LANDLORD. LANDLORD shall have the right from time-to-time to establish reasonable rules and regulations with respect to the Common Areas; to police the same; from time-to-time change the area, level, location and arrangement to the Common Areas; and to do and perform such other acts in and to the Common Areas, as in the use of good business judgement, LANDLORD shall determine to be advisable with a view to the improvement or the convenience and use thereof by tenants, their officers, agents, employees, and customers. TENANT and TENANT'S employees shall park their cars only in those portions of the parking area designated for that purpose by LANDLORD. TENANT shall furnish LANDLORD, upon request, with automobile license numbers assigned to TENANT'S car or cars, and cars of TENANT'S employees. TENANT further agrees that it, its invitees and licensees, will not use the parking area for the permanent garaging of any vehicle or for overnight parking. TENANT covenants that, throughout the term of this Lease, it shall not conduct any activity which increases the use of the parking area or increases the amount of traffic on the parking area beyond the normal use for customers patronizing TENANT for the use of the Leased Premises as set forth in the Basic Lease Provisions, Page 1; Paragraph 11. LANDLORD hereby reserves the dght at any time to make alterations or additions to and to build additional stories on the building in which the Leased Premises are contained and to build adjoining the same. LANDLORD also reserves the dght to construct other buildings or improvements in the center. 18. ROOF. LANDLORD shall have the exclusive right to use all or any part of the roof of the Leased Premises, for any purpose not inconsistent with TENANT'S Use; and to erect in connection with the construction thereof, ',~mporary scaffolds or other aids to construction on the exterior of the Leased Premises, provided that access to the Leased Premises shall not be denied. TENANT further agrees that LANDLORD may make whatever use LANDLORD desires to of the side and rear walls of the Leased Premises, provided that there shall be no encroachments upon the intedor of the Leased Premises. 19. INSURANCE BY TENANT - INDEMNIFICATION. TENANT will keep in rome at TENANT'S expense from the Occupancy Date, public liability insurance in companies acceptable to and in form satisfactory to LANDLORD insudng as named insureds LANDLORD and TENANT and, if required by LANDLORD, insuring also as named insureds, the holders of any Mortgage on the Loosed Premises, with Public Liability Single Limits of One Million Dollars ($1,000,000) for bodily injury and property damage, as well as boiler insurance (if applicable) and plate glass insurance in amounts required by LANDLORD. TENANT shall deposit the policy or policies of such insurance or certificates thereof with proof of payment with LANDLORD prior to TENANT'S entedng upon the Leased Premises for any purpose and shall deliver all renewal policies and proof of payment thereof at least twenty (20) days prior to the expiration or cancellation of any such policy. Each policy of certificate of insurance shall be endorsed to provide that the same may not be canceled except upon not less than ten (10) days prior written notice by the insurer to LANDLORD and to any Mortgagee named as said insured. 20. RIGHT OF ACCESS. TENANT will permit LANDLORD, its agents, employees, and contractors to enter the Leased premises and all parts thereof to inspect the same, to enforce or carry out any provisions of this Lease binding upon TENANT, but not fully and properly performed by TENANT, to perform any defaulted obligation of TENANT or for any other proper purpose, and duhng the final six (6) months of the term to bdng prospective tenants and at any time to bring prospective purchasers or appraisers into the Leased Premises for the purposes of inspecting the same; provided, however, such entry does not unreasonably interfere with the normal operation of TENANT'S business. 21. INDEMNIFICATION AND HOLD HARMLESS. TENANT will indemnify LANDLORD and save LANDLORD harmless from and against any and all claims, actions, damages, liabilities and expenses (including, but not limited to, attorney's fees and disbursements) in connection with the loss of life, personal injury or damage to the property or business arising from, related to, or in connection with the occupancy or use, by TENANT or any other occupant, of the Loosed Premises or any part of LANDLORD'S property or occasioned wholly or in part by any act or omission of any contractor, subcontractor, customer, agent, servant, or employee to TENANT or any other occupant. The obligation of TENANT under this paragraph shall survive the expiration or earlier termination of the term of this Lease. LANDLORD, its agents, employees and contractors shall not be liable for, and TENANT hereby releases LANDLORD, its agents, employees and contractors from all claims for loss of life, personal injury or damage to property or business sustained by TENANT or any person claiming by, through or under TENANT resulting from any fire, accident, occurrence, criminal acts by third persons, or condition in or upon the Leased Premises, the Shopping Center or any part thereof, including, but not limited to any such claims for loss of life, personal injury, or any damage to property or business resulting from: A. Any defect (latent or otherwise) in the Leased Premises or any building in the Center B. Any defect (latent or otherwise) in, or any failure of, any equipment, machinery, utilities, appliances, or apparatus installed in the Center or any building therein (whether or not resulting from lack of repair or improper repair of any such equipment, machinery, utilities, appliances, or apparatus), including, without limitation: 5 or walks; a) Failure of plumbing, heating, air conditioning equipment, electrical widng, gas, steam and water pipes, stairs, railings, b) bursting, running, leakage or other failure of water tanks, gas, steam, hot water, cold water, waste, drain, sewer or other pipes or tanks; c) backing up of any sewer pipes C. Falling of plaster, fixtures, tile or stucco same is a part The presence of water, snow or ice upon the roof or about the Leased Premises Leakage of water, snow or ice from the roof or any other place upon the LeAsed Premises, or the building of which the F. Broken glass G. Any act or omission of other tenants or occupants of the Center H. Any act or omission (including negligent acts or omissions) of LANDLORD, its principals, agents, servants, and employees whether cccurdng on, prior to, or subsequent to the date of this Lease. 22. TOTAL OR PARTIAL DESTRUCTION. If the Leased Promises shall be damaged to an extent greater than the amount specified in any deductible provision of LANDLORD'S policy by fire, the elements, unavoidable accident, or other casualty covered by the usual policy insuring for fire and extended coverage or otherwise covered by LANDLORD'S insurance, and the cost of repairing such damage shall be less than fifty (50%) percent of the fair replacement value of the Leased Premises immediately pdor to such damage, LANDLORD shall cause such damage to be repaired with due diligence and this Lease shall continue. If, however, in the event of damage from any such cause, the cost of restoring the Leased Promises to its condition immediately prior to such damage shall equal or exceed fifty (50%) percent of its fair replacement value immediately pdor to such damage, or if the Leased Premises is damaged by any casualty not insured against or insufficiently insured against by LANDLORD, LANDLORD shall have the right to terminate this Lease by giving TENANT wdtten notice of it election to do so within sixty (60) days after the date on which the damage occurs, whereupon this Lease shall terminate as of the date on which the damage occurs, and Rent shall be adjusted as of said date; but in default of such notice by LANDLORD, this Lease shall continue, and LANDLORD shall cause the Leased Premises to be repaired or restored with due diligence. Except in the event of termination of this Lease, as aforesaid, Fixed Minimum Rent shall be abated proportionately as to the portion, if any, of the Leased Premises as shall be rendered unfit for occupancy for the usual conduct of TENANT'S business in consequence of the damage aforesaid for the pedod of such unfitness for occupancy, and for each Lease Year during which a reducfion in Fixed Minimum Rent thereby results, the amount at which payment of Percentage Rent shall be reduced in the same proportion that the Fixed Minimum Rent for that year is reduced. In the event, however, the Leased Premises shall be damaged by fire or other insurance casualty due to the fault or neglect of TENANT, TENANT'S servants, employees, contractors, agents, visitors, or licensees, then, without prejudice to any of the rights and remedies of LANDLORD, there shall be no apportionment or abatement of any Rent. Except to the extent provided for in this Lease, none of the Rent payable by TENANT, nor any of TENANT'S other obligations under any provision of this Lease shall be affected by any damage or destruction of the Leased Premises by any cause whatsoever, and TENANT hereby expressly waives any and all additional rights as it might otherwise have under any law or statute. TENANT agrees that its fire insurance policiee for its contents, furniture, fixtures and other property removable, TENANT under the provisions of this Lease shall include appropriate clauses pursuant to which the insurance carders: A. Waive all dghts of subrogation against LANDLORD with respect to losses payable under such policies and/or B. Agree that such policies shall not be invalidated should the insured waive in writing prior to a loss any or all right of recovery against any party for losses covered by such policies. C. TENANT hereby waives any and all dght of recovery which it might otherwise have against LANDLORD, its agents and employees, for loss or damage to TENANT'S contents, furniture, furnishings, fixtures and other property removable by TENANT under the provisions of this Lease notwithstanding that such loss or damage may result from the negligence or fault of LANDLORD, its agents or employees. TENANT agrees to advise LANDLORD promptly as to the language of the clauses included in its insurance policies pursuant to this paragraph. TENANT also agrees to notify LANDLORD prior to any change of the terms of any such policy which would affect such clauses. D. In the event that fifty (50%) percent or more of the total leasable area of the Shopping Center shall be damaged or destroyed by fire or other cause, notwithstanding that the Leased Premises may be unaffected by such fire or other cause, LANDLORD may terminate this Lease and the tenancy hereby created by giving to TENANT fifteen (15) days prior written notice of LANDLORD'S election to do so, which notice shall be given, if at all, within sixty (60) days following the date of said occurrence. Rent shall be adjusted as of the date of such termination as hereinabove provided. In the event that LANDLORD elects not to give such notice and to continue the tenancy created by this Lease, there shall be no abatement or reduction in the Rent due under this Lease whether the same be Fixed Minimum, Percentage, or Additional. E. If, during the last two (2) years of the term of this Lease the Leased Premises shall be damaged or destroyed as aforesaid to the extent of twenty (20%) percent or more of its insured value, or the Shopping Center of which they are a part shall be damaged to the extent of twenty (208) percent or more of its insured value, LANDLORD, at its election, may terminate this Lease pursuant to this paragraph, the termination shall become effective on the fifteenth (15th) day after the giving of the notice of termination. An appropriate proportion of the Fixed Minimum Rent, according to the nature and extent of the injury to the Leased Premises, shall be suspended or abated until the time of termination, and the Fixed Minimum Rent shall be apportioned as of the time of termination. 23. EMINENT DOMAIN. If the whole or any part of the Leased Premises shall be taken under the power of eminent domain, then this Leased Premises shall terminate as to the part so taken on the day when TENANT is required to yield possession thereof, and LANDLORD shall make such repairs and alterations as may be necessary Jn order to restore the part not taken to useful condition. If the amount of the Leased Premises so taken is such as to impair substantially the usefulness of the Leased Premises for the purpose for which the same are hereby leased, then either party shall have the option to terminate this Lease as of the date when TENANT is required to yield possession by delivering written notice to the other party within sixty (60) days after the date TENANT is deprived of possession. If more than twenty (20%) percent of the Center bother than the Leased Premises) is taken, then LANDLORD or TENANT shall have the option to terminate this Lease as of the date when possession of the portion of the Center so taken is required to be yielded up, by delivering written notice to the other within sixty (60) days after the date of the taking. All compensation awarded for such taking of the fee and the leasehold shall belong to and be the property of LANDLORD. TENANT releases in favor of and assigns to LANDLORD all claims in such connection and agrees with LANDLORD that TENANT shall make no claims therefor against LANDLORD, the condemnor or any other party, provided, however, that LANDLORD shall not be entitled to any portion of any award made to TENANT for the cost of removal of TENANT'S stock and removable trade fixtures. 24. ASSIGNMENT AND SUBLETTING: TENANT may not assign this Lease in whole or in part, or sublet all or any part of the Leased Premises, without the pdor written consent of LANDLORD. Consent by LANDLORD to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. This prohibition against assigning or subletting or assignment shall further include any assignment which would otherwise occur by operation of law, merger, consolidation and reorganization, transfer or transfers of the stock of a corporate tenant resulting in a transfer of control. Notwithstanding any assignment or subletting made with LANDLORD'S consent, TENANT shall remain fully liable to LANDLORD under this Lease and, if required, TENANT shall provide LANDLORD with a wdtten agreement of any approved assignee or subtenant whereby the approved assignee or subtenant undertakes liability to LANDLORD (along with TENANT) for payment and performance without any limitations as required of TENANT under this Lease. 25. CUSTOM AND USAGE. LANDLORD and TENANT shall each have the right at all times to enforce the covenants and conditions of this Lease in stdct accordance with the terms hereof, notwithstanding any conduct or custom on its part in refraining from so doing. The failure of LANDLORD or TENANT at any time or times to enforce its rights under said covenants and provisions strictly in accordance with the same shall not be construed as having created a custom in any way or manner contrary to the specific terms, provisions and covenants of this Lease or as having in any way or manner modified the same. 26. PERFORMANCE OF TENANT'S COVENANTS. If TENANT fails to perform any of the agreements and covenants expressed in this Lease as to be performed by TENANT, then LANDLORD may, at its option, enter upon the Leased Premises and perform such agreement or covenant on TENANT'S behalf, and LANDLORD shall have no liability to TENANT for any loss or damage resulting in any way from such action by LANDLORD, and TENANT agrees promptly to pay upon demand as Additional Rent any expense incurred by LANDLORD in taking such action, with interest thereon at the rate of ten (10%) percent per annum, or at the highest legal rate enforceable against TENANT, whichever is the lower, if not so paid on demand. 27. EVENTS OF DEFAULT. This Lease is made upon the condition that TENANT shall punctually and faithfully perform all of the covenants, conditions and agreements by it to be performed as is set forth in this Lease. The following shall each be deemed to be an event of default (each of which is sometimes referred to as an "Event of Default" in this Lease): A. The failure by the TENANT to pay the Rent, including but not limited to Minimum Rent, Percentage Rent, Additional Rent or any late charges or fees, or any installment thereof, if such failure continues for five (5) days after written or oral notice thereof by LANDLORD to TENANT. The filing of a Mechanics Lien as the result of TENANT'S work not paid for contrary to the provisions of this Lease. C. The failure of TENANT to open its business to the public in the Leased premises on or prior to thirty (30) days after the date on which TENANT is required to open its business to the public, or the failure to open or to remain open on the days and hours required by this Lease, or if TENANT vacates or abandons the Leased Premises. D. The failure of TENANT to observe or perform any of the covenants, terms or conditions set forth in respect to assignment and subletting when such failure continues for a period of fifteen (15) days. E. The failure of TENANT to observe or perform any of the other covenants, terms or conditions set forth in this Lease where said failure continues for a pedod of fifteen (15) days after wdtten or oral notice thereof from LANDLORD to TENANT (unless such failure cannot reasonably be cured within fifteen (15) days and TENANT shall have commenced to cure said failure within fifteen (15) days and continued diligently to pursue the cudng of the same until completed). F. The commencement of levy, execution, or attachment proceedings against TENANT or a substantial portion of TENANT'S assets; the commencement of levy, execution, attachment or other process of law upon, on, or against the estate created in TENANT hereby; the application for or the appointment of a liquidator, receiver, custodian, sequester, conservator, trustee, or other similar judicial officer (and such appointment continues for a period of thirty [30] days); the insolvency of TENANT in the bankruptcy or equity sense; or any assignment by TENANT for the benefit of creditors. G. The commencement of a case by or against TENANT or any guarantor, under any insolvency, bankruptcy, creditor adjustment or debtor rehabilitation laws, state or federal. The determination by the TENANT to request relief under any insolvency proceeding, including any insolvency, bankruptcy, creditor adjustment or debtor rehabilitation laws, state or federal, terminates the estate created in TENANT hereby and the Leased Premises shall not become an asset in any such proceedings. H. Repetition or continuation of any failure to timely pay any Rent or other sums reserved hereunder or to timely report Gross Sales as provided herein where such failure shall continue to be repeated for two (2) consecutive months, or for a total of four (4) months in any period of twelve (12) consecutive months. I. Repetition or continuation of any failure to observe or perform any of the other covenants, terms or conditions hereof more than six (6) times, in the aggregate, in any pedod of twelve (12) consecutive months. J. The failure of TENANT to pay when due all taxes, assessments, and government charges imposed upon it or which it is required to withhold and pay over, K. The sale or removal of a substantial portion of TENANT'S property located in the Leased Premises in a manner which is outside the ordinary course of TENANT'S business. 28. LANDLORD'S REMEDIES. A. LANDLORD may treat any Event of Default as a breach of this Lease. LANDLORD'S failure to insist upon strict performance of any covenant, term or condition of this Lease or to exercise any dghts or remedies it has reserved herein shall not be deemed a waiver or relinquishment for the future of such performance, dght or remedy. In addition to any and all other dghts or remedies of LANDLORD in this Lease or as provided by law or equity, LANDLORD shall have the following dghts and remedies if there shall occur any Event of Default except as otherwise provided herein: a) To terminate the Lease, and without further notice,~to repenter the Leased Premises and taks possession thereof and to remove all persons therefrom, and TENANT shall have no further claims or rights hereunder. b) To bring suit for the collection of rent and for damages (including, without limitation, reasonable attorneys' fees and the cost of repairing and reletting the Leased Premises) without entering into possession of the Leased Premises or canceling this Lease. Commencement of any action by LANDLORD for Rent and damages shall not be construed as an election to terminate this Lease, and shall not absolve or discharge TENANT from any of its obligations or liabilities for the remainder of the Term. c) To retake possession of the Leased Premises from TENANT by summary proceedings or otherwise. To the extent permitted by law, TENANT waives notice of re-entry or institution of legal proceedings and any right of redemption, re-entry or repossession. Commencement of any action by LANDLORD for re-entry shall not be construed as an election to terminate this Lease and shall not absolve or discharge TENANT from any of its obligations or liabilities for the remainder of the Term. If, in the event of any ouster, LANDLORD re-lets the Leased Premises, TENANT shall continue to be liable for the payment of any deficiencies in Rent after such re-let. In the event of any re-entry, LANDLORD shall have the dght but not the obligation to remove any personal property from the Leased Premises and place the same in storage at a public warehouse at the expense and risk of TENANT. d) To enter the Leased Premises and, without further demand or notice, proceed to distress and sale of the goods, chattels, and personal property there found, and to levy the Rent, and TENANT shall pay all costs and officers' commissions, including watchmen's wages and sums chargeable to LANDLORD, and further including the five (5%) percent chargeable by the Act of Assembly as commissions to the constable or other person making the levy, and in such cases all costs, officers' commissions, and other charges shall immediately attach and become part of the claim of LANDLORD for Rent, and any tender of Rent without said costs, commissions and charges made after the issuance of a warrant of distress, shall not be sufficient to satisfy the claim of LANDLORD. Upon the occurrence of any Event of Default, LANDLORD shall have the election, forthwith to recover against TENANT, as liquidated damages for loss of the bargain and not as a penalty, a sum equal to the Fixed Minimum Rent multiplied by the number of months and fractional months which would have constituted the balance of the term and any unamortized portion of any construction allowance or other costs. In the event of a breach or threatened breach by TENANT of any of the covenants or provisions hereof, LANDLORD shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this Lease of any particular remedy shall not preclude LANDLORD from any other remedies under this Lease, now or hereafter existing at law or in equity or by statute. TENANT hereby expressly waives the service of notice of intention to re-enter or to institute legal proceedings to that end and any and all rights of redemption granted by or under any present or future laws in the event of TENANT being evicted or dispossessed for any cause, or in the event of LANDLORD obtaining possession of the Leased Premises by reason of the violation by TENANT of any of the covenants and conditions of this Lease or otherwise. The words "re-enter" and "re-entry" as used in this Lease are not restricted to their technical legal meaning. B. If TENANT shall default in the payment of the Rent reserved or in the payment of any other sums due hereunder by TENANT, TENANT hereby authorizes and empowers any Prothonotary or attorney of any court of record within the United States or elsewhere to appear for TENANT in any and all actions which may be brought for said Rent and/or said other sums; and/or to sign for TENANT an agreement for entedng in any competent court and amicable action or actions for the recovery of said Rent and/or other sums; and in said suits or in said amicable action or actions, to confess judgement against TENANT for all or part of said Rent and/or said other sums, and the rent for the entire unexpired balance of the term of this Lease; and for interest and costs, together with an attorney's commission for collection of five (5%) percent. Such authedty shall not be exhausted by one exercise thereof, but judgement may be confessed as aforesaid from time-to-time as often as any of said Rent and/or sums shall fall due or be in arrears, and such powers may be exercised as well as after the expiration of the Term of this Lease and/or dudng any extended or renewal term of this Lease and/or after the expiration of any extended or renewal term of this Lease. C. When this Lease or any extension or renewal thereof shall have been terminated on account of any default by TENANT hereunder, and also when the Lease Term hereby created or any extension or renewal hereof shall have expired, it shall be lawful for any attorney of any court of record within the United States or elsewhere to appear as attorney for TENANT as well as for all persons claiming by, through or under TENANT, and to sign an agreement for entering in any competent court an amicable Action in Ejectment against TENANT and all persons claiming by, through or under TENANT and therein confess judgement for the recovery by LANDLORD of possession of the Leased Premises, for which this Lease shall be sufficient warrant; thereupon, if LANDLORD so desires, an appropriate Writ or Possession may issue forthwith, without any prior writ or proceeding whatsoever, and provided that if for any reason after such action shall have been commenced it shall be determined that possession of the Leased Premises should remain in or be restored to TENANT, LANDLORD sha~l have the right for the same default and upon any subsequent default or defaults, or upon the termination of this Lease, or of TENANT'S dght of possession as hereinbefore set forth, to bring one or more further amicable action or actions as hereinbefore set forth to recover possession of the Leased Premises, and to confess judgement for the recovery of possession of the Leased Premises as hereinbefore provided. D. In any amicable Action of Ejectment and/er for Rent and/or other sums, LANDLORD shall first cause to be filed in such action an Affidavit made by LANDLORD or someone acting for LANDLORD, setting forth the facts necessary to authorize the entry of judgemect, and if a true copy of this Lease (and of the truth of the copy such Affidavit shall be sufficient evidence) shall be filed in such suit, action or actions, it shall not be necessary to file the original as a warrant of attorney, any rule of court, custom or practice to the contrary notwithstanding. E. TENANT expressly waives: a) The benefit of all laws, now or hereinafter in force, exemption of any goods in the Leased Premises or elsewhere from distraint, levy or sale in any legal proceedings taken by LANDLORD to enforce any right under this lease. b) The benefit of all laws now made or which may hereafter be made regarding any limitation as to the goods upon which, or the time within which, distress is to be made after the removal of goods, and TENANT further relieves LANDLORD of the obligation of providing or identifying such goods; it being the purl::.~_~ and intent of this provision that all goods of TENANT, whether upon the Leased Premises or not, shall be liable to distress for rent. c) The dght to issue a Writ of Replevin for the recovery of any goods seized under a distress for rent or levy upon an execution for rent, damages or otherwise. d) The right to delay execution on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of this lease and any right to have the same appraised. TENANT authorizes the Prothonotary or Clerk to enter a Writ of Execution or other process upon TENANT'S voluntary waiver and further agrees that said real estate may be sold on a Writ of Execution or other process. 29. ACCORD AND SATISFACTION. No payment by TENANT or receipt by LANDLORD of a lesser amount than the Monthly, Percentage, or Additional Rent herein stipulated shall be deemed to be other than on account of the eadiest stipulated Monthly, Percentage or Additional Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Monthly, Percentage, or Additional Rent be deemed an accord and satisfaction, and LANDLORD may accept such check or payment without prejudice to LANDLORD'S right to recover the balances of such Monthly Pementage, or Additional Rent or pursue any other remedy provided in this Lease. 30. SUBORDINATION OF LEASE. TENANT agrees to subordinate its dghts under this Lease to any lease wherein LANDLORD is the lessee and to the lien of any or all mortgages or deeds of trust, regardless of whether such lease, mortgage, or deeds of trust now exist or may hereinafter be created with regard to all or any part of the Shopping Center, and to any and all advances to be made thereunder, and to the interest thereon, and all modifications, consolidations, renewals, replacements and extensions thereof, termination of the Lease or foreclosure under the mortgage or deeds of trust, to recognize this Lease, if TENANT is not in default. Such subordination shall be effective without the execution of any further instrument. TENANT also agrees that any lessor, mortgagee or trustee may elect to have this Lease prior to any lease or lien of its mortgage or deed of trust, and in the event of such election and upon notification by such lessor, mortgagee or trustee to TENANT to that effect, this Lease shall be deemed prior in llen to the said lease, mortgage or deed of trust, whether this Lease is dated pdor to or subsequent to the date of said lease, mortgage or deed of trust. 31. TENANT'S ATTORNMENT. TENANT shall, in the event of the sale or assignment of LANDLORD'S interest in the Leased Premises, or in the event of any proceedings brought for the foreclosure of, or in the event of the exercise of the power of sale under any mortgage or deed of trust covedng the Leased Premises, or in the event of the termination of any lease in a saleleaseback transaction wherein LANDLORD is the lessee, attorn to and recognize such purchaser or assignee or mortgagee as LANDLORD under this Lease. TENANT agrees that, upon the request of LANDLORD, or any such lessor, mortgagee or trustee, TENANT shall execute and deliver whatever instruments may be required for such purposes and to carry out the intent of this paragraph, and in the event TENANT fails to do so within fifteen (15) days after demand in wdting, TENANT does hereby make, constitute and irrevocably appoint LANDLORD as its attorney-in-fact, coupled with an interest, in its name, place and stead to sign and deliver such instruments as if the same had been signed and delivered by TENANT. 32. LEASE SUBJECT TO FINANCING REQUIREMENT. If any Pending institution with which LANDLORD has negotiated or may negotiate construction, interim, or long-term financing for the Shopping Center does not approve the financial and credit rating of TENANT for purposes of such financing, or if any such lending institution shall require a change or changes in this Lease as a condition of its approval of this Leese for such financing, and if within fifteen (15) days after notice from LANDLORD: (a) TENANT fails or refuses to supply or execute assurance and/or guarantees which axe stated by LANDLORD as necessary to secure the approval of TENANT'S financial and credit rating by any such lending institution; or, (b) if TENANT fails or refuses to execute with LANDLORD the amendment or amendments to this Lease accomplishing the change or changes which are stated by LANDLORD to be needed in connection with approval of this Lease for purposes of such financing, LANDLORD shall have the right to cancel this Lease at any time prior to the commencement of TENANT'S Work as defined herein in Exhibit "B". In the event of cancellation by LANDLORD hereunder, this Lease shall be and become null and void with no further liability or obligation on the part of either party hereto. 33. ENTIRE AGREEMENT. This Lease, including the Exhibits hereto and any addenda hereto, sets forth all of the covenants, promises, agreements, conditions and understandings between LANDLORD and TENANT concerning the Leased Premises and the Shopping Center. No alteration, amendment, change or addition to this Lease shall be binding upon LANDLORD or TENANT unless reduced to writing, signed by them and mutually delivered between them. 34. TENANT WILL QUIT. TENANT agrees to quit and remove from the Leased Premises at the end of the term or sooner termination of this Lease, without notice and that TENANT will thereupon without delay deliver to LANDLORD all keys TENANT may have for the Lea.:'e,~ Premises. 35. BANKRUPTCY ANDINSOLVENCY A. In the event TENANT shall become a debtor under Chapter 7 of the Bankruptcy Code as it may be amended or to any other successor statute thereto, and the Trust or TENANT shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Section d)iv. and Section d)vi. hereof are satisfied. If such Trustee shall fail to elect or assume this Lease within sixty (60) days after the filing of the Petition, this Lease shall be deemed to have been rejected. LANDLORD shall be thereupon immediately entitled to possession of the Demised Premises without further obligation to TENANT or Trustee, and this Lease shall be canceled, but LANDLORD'S dght to be compensated for damages in such liquidation proceeding shall survive. B. In the event a Petition for reorganization or adjustment of debts is filed concerning TENANT under Chapters 11 or 13 of the Bankruptcy Cede, or a proceeding is filed under Chapter 7 of the Bankruptcy Code and is transfen'ed to Chapters 11 or 13, the Trustee or TENANT, as Debtor-In-Possession must elect to assume this Lease within seventy-five (75) days from the date of the filing of the Petition under Chapters 11 or 13, or the Trustee or Debtor-In-Possession shall be deemed to have rejected this Lease. No election by the Trustee or Debtar-ln-Possession to assume this Lease, whether under Chapters 7, 11, or 13, shall be effective unless each of the following conditions which LANDLORD and TENANT acknowledge are commercially reasonable in the context of a bankruptcy proceeding of TENANT, have been satisfied, and LANDLORD has so acknowledged in wdting: a) (as defined below) that: The Trustee or the Debtor-In-Possession has cured, or has provided LANDLORD adequate assurance (I.) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and (ii.) within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease. b) The Trustee or the Debtor-In-Possession has compensated, or has provided to LANDLORD adequate assurance (as defined below) that within ten (10) days from the date of assumption LANDLORD will be compensated for any pecuniary loss incurred by LANDLORD arising from the default of TENANT, the Trustee, or the Debtor-in-Possession as recited in LANDLORD'S wdtten statement of pecuniary loss sent to the Trustee or Debtor-In-Possession. c) The Trustee or the Debtor-In-Possession has provided LANDLORD with adequate assurance of the future performance of each of TENANT'S, Trustee's or Debtor-ln-Possession's obligations under this Lease; provided, however, that: (I.) The Trustee or Debtor-In-Possession shall also deposit with LANDLORD, as security for the timely payment of rent, an amount equal to three (3) months' rent {as adjusted pursuant to Section ii/iii below) and other monetary charges accruing under this Lease; and 3.1 (ii.) if not otherwise required by the terms of this Lease, the Trustee or Debtor-In-Possession shall also pay in advance on the date minimum rent is payable one-twelfth (l/12th) of TENANT'S annual obligations under this Lease for maintenance, common area charges, real estate taxes, merchants' association dues, insurance, and similar charges. (iii.) From and after the date of the assumption of this Lease, the Trustee or Debtor-In-Possession shall pay as minimum rent an amount equal to the sum of the minimum rental otherwise payable hereunder, plus the highest amount of the annual percentage rent paid by TENANT to LANDLORD within the five (5) year period pdor to the date of TENANT'S Petition under the Bankruptcy Code, which amount shall be payable in advance in equal monthly installments on the date minimum rant is payable. (iv.) The obligations imposed upon the Trustee or Debtor-In-Possession shall continue with respect to TENANT or any assignee of the Lease after the completion of bankruptcy proceedings. d) The assumption of this Lease will not: (1.) Braach any provision in any other lease, mortgage, financing agreement or other agreement by which LANDLORD is bound ralating to the Shopping Center; or, (ii.) Disrupt, in LANDLORD'S reasonable judgement, the tenant mix of the Shopping Center or any other attempt by LANDLORD to provide a specific variety of retail stores in the Shopping Center which, in LANDLORD'S judgement, would be most beneficial to all of the tenant's of the Shopping Center, and would enhance the image, reputation and profitability of the Shopping Center. (iii.) For purposes of this Section, LANDLORD and TENANT acknowledge that in the context of s bankruptcy proceeding of TENANT, at a minimum "adequate assurance" shall mean: (a) The Trustee or the Debt0r-ln-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure LANDLORD that the Trustee or Debtor-In-Possession will have sufficient funds to fulfill the obligations of TENANT under this Lease, and to keep the Demised Premises stocked with memhandise and properly staffed with sufficient employees to conduct a fully operational, actively promoted business on the Demised Premisee; and (b) The Bankruptcy Court shall have entered an Order segragating sufficient cash payable to LANDLORD and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of TENANT, Trustee or Debtor-In-Possession, acceptable as to value and kind to LANDLORD, to secure to LANDLORD the obligation of the Trustee or Debtor-In-Possession to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above. (iv.) In the event that this Lease is assumed by a Trustee appointed for TENANT, or by TENANT as Debtor-In-Possession under the provisions of Section B hereof and thereafter TENANT is liquidated or files a subsequent Petition for reorganization or adjustment of debts under Chapters 11 or 13 of the Bankruptcy Code, then, and in either of such events, LANDLORD may, at its option, terminate this Lease and all dghts of TENANT hereunder by giving TENANT written notice of its election to so terminate, by no later than thirty (30) days after the occurrence of either of such events. (v.) If the Trustee or Debtor-In-Possession has assumed the Lease pursuant to the terms and provisions of Sections d)l. or d)ii. herein, for the purposes of assigning (or elects to assign) TENANT'S interest under this Lease or the estate created theraby, to any other person, such interest or estate may be so assigned only if LANDLORD shall acknowledge in wdting that the intended assignee has provided adequate assurance as defined in this Section v. of future performance of all of the terms, covenants and conditions of this Lease to be performed by TENANT. For purposes of this Section v., LANDLORD and TENANT acknowledge that, in the context of a Bankruptcy proceeding of TENANT, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and LANDLORD has so acknowledged in writing: (a) The assignee has submitted a current financial statement audited by a certified public accountant which shows a net worth and working capital in amounts determined to be sufficient by LANDLORD to assure the future performance by such assignee of TENANT'S obligations under this lease. (b) The assignee, if requested by LANDLORD, shall have obtained guarantees in form and substance satisfactory to LANDLORD from one or more persons who satisfy LANDLORD'S standards of creditworthiness. (c) The assignee has submitted, in writing, evidence satisfactory to LANDLORD of substantial retailing experience in shopping centers of comparable size to the Shopping Center, and in the sale of merchandise and services permitted under this Lease. (d) LANDLORD has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which LANDLORD is bound to permit LANDLORD to consent to such assignment. (vi.) When, pursuant to the Bankruptcy Code, the Trustee or Debtor-In-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Demised Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of TENANT for the payment of maintenance, Common area charges, real estate taxes, merchants association dues, insurance, and similar charges, (vii.) Neither TENANT'S interest in the Lease, nor any lesser interest of TENANT herein, nor any estate of TENANT hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors or any other person or entity, or otherwise by operation of law under the laws of any state having jurisdiction of the person or property of TENANT (hereinafter referred to as the "state law") unless LANDLORD shall consent to such transfer in writing. No acceptance by LANDLORD of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive the need to obtain LANDLORD'S consent of LANDLORD'S right to terminate this Lease for any transfer of TENANT'S interest under this Lease without such consent. (viii.) in the event the estate of TENANT created hereby shalt be taken in execution or by other process of law, or if TENANT or any guarantor of TENANT'S obligations hereunder (hereinafter referred to as the "GUARANTOR") shall be adjudicated insolvent pursuant to the provisions of any present or future insolvency law under state law, or if any proceedings are filed by or against the guarantor under the Bankruptcy Code, or any similar provisions of any future federal bankruptcy law, or if a Receiver or Trustee of the property of TENANT or the guarantor shall be appointed under state law by reason of TENANT'S or the Guarantor's insolvency or if any assignment shall be made of TENANT'S or the law; then, and in such event, LANDLORD may, at its option, terminate this Lease and all dghta of TENANT hereunder by giving TENANT wdtten notice of the election to so terminate within thirty (30) days after the occurrence of such event. 36. MECHANIC LIENS. A. TENANT will not permit to be createq or to remain undischarged any lien, encumbrance, or charge (adsing out of any work done or matadals or supplies furnished by any contractor, subcontractor, mechanic, laborer or materialman or any mortgage, conditional sale, secudty agreement or chattel mortgage, or otherwise by or for TENANT) which might be or become a lien or encumbrance, or charge upon the Shopping Center or any portion thereof or the income therefrom. TENANT will not suffer any other matter or thing whereby the estate, dghts and interests of LANDLORD in the Shopping Center or any portion thereof might be impaired. If any lien or notice of lien on account of any alleged debt of TENANT or any notice of contract by a pady engaged by TENANT or TENANT'S contractor to work on the Premises shall be filed against the Shopping Center or any portion thereof, TENANT shall, within five (S) days after demand from LANDLORD, cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction, or otherwise. If TENANT shall fail to cause such lien or notice of lien to be discharged within the pedod aforesaid, then, in addition to any other right or remedy it may have, LANDLORD may, but shall not be obligated to, discharge such lien by deposit or by bonding proceedings, and in any such event LANDLORD shall be entitled, if LANDLORD so elects, to compel the prosecution of an action for the foreclosure of such lien by the interests costs and allowances. Any amount so paid by LANDLORD and all costs and expenses, including attorneys' fees, incurred by LANDLORD, and all costs therewith, shall constitute Additional Rent payable to TENANT under this Lease, and shall be paid by TENANT to LANDLORD on demand. Nothing herein contained shall obligate TENANT to pay or discharge any lien created by LANDLORD. B. TENANT shall pay promptly all persons furnishing labor or materials with respect to any work performed by TENANT or TENANT'S contractor in the Premises. No work which LANDLORD permits TENANT to do shall be deemed to be for the immediate use and benefit of LANDLORD so that no mechanic's or other lien shall be allowed against the estate of LANDLORD by reason of any consent given by LANDLORD to TENANT to improve the Premises. 13 C. Prior to commencement of any work or the delivery of any material to the Premises by any Contractor, subcontractors or materialman (herein collectively called "Contractor"), TENANT will deliver to LANDLORD a recordable waiver of lien affidavit (herein called "Contractor's Waiver of Lien") from each such Contractor in the form attached hereto as Exhibit "E". Contractor's Waiver of Lien provides among other things, that the Contractor waives any and all lien rights that it may have against LANDLORD'S interest in the Shopping Center or any portion thereof. 37. MISCELLANEOUS. A. Holding Over - Any holding over by TENANT after the expiration of the term hereof with consent of LANDLORD, shall be Construed to be a tenant from month-to-month only, at the rants and on the other terms and conditions herein provided to the extent applicable. B. Waiver of Jury Trial - Both LANDLORD and TENANT agree hereby to waive and do hereby waive trial by jury in any action, proceedings, or counter-claim brought by either of the parties hereto under or in connection with this Lease. C. Waiver of Right of Redemption - TENANT hereby expressly waives any and all dghts of redemption granted by or under any present or future law in the event TENANT is evicted by the Order of any Court pursuant to any dispossessory warrant or proceedings in any court. D. Quiet Enjoyment - Upon payment by TENANT of the rants and other sums herein reserved and provided to be paid by TENANT, and upon the observance and performance by TENANT of all of the covenants, agreements, terms and conditions of this Lease on TENANT'S part to be observed and performed, TENANT shall peaceably and quietly hold and enjoy the Lease Premises for the term hereby demised without hindrance or interruption by LANDLORD or by any persons lawfully claiming or holding by, through or under LANDLORD, subject nevertheless, to the terms, provisions, and conditions of this Lease. 38. RECORDING. TENANT covenants not to place this Lease on record without the prior wdtten consent of LANDLORD. 39. NOTICE OF LANDLORD DEFAULT. No default on the part of LANDLORD hereunder shall be deemed to have occurred until LANDLORD shall have been given thirty (30) days wdtten notice by TENANT. 40. SUCCESSION. Subject to the limitations against assignment and subleasing hereinbefore set out, all hghts and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several and respective heirs, executors, administrators, successors and assigns of the said parties; and if there shall be more than one tenant, they shall all be bound jointly and severally by the terms, covenants, and agreements herein, and the word 'TENANT" shall be deemed and taken to mean each and every person or party mentioned as a tenant herein; and Jf there shall be more than one tenant, any notice required or permitted by the terms of this Lease may be given by or to any one thereof, and shall have the same force and effect as if given by or to all thereof. 41. LIMITED LIABILITY. Neither LANDLORD nor any partner of LANDLORD shall be under any personal liability with respect to any of the provisions of this lease, and if LANDLORD is in breach or default under this Lease. TENANT shall look solely to the equity of LANDLORD in the Leased Premises and the Shopping Center for the satisfaction of TENANT'S remedies. LANDLORD'S liability under the terms, covenants, conditions, warranties and obligations of this Lease shall in no event exceed the loss of LANDLORD'S equity interest in the Center. 42. BROKERS. TENANT represents and warrants to LANDLORD that TENANT has had no dealings, negotiations, or consultations with respect to the Leased Premises, or this transaction with any broker or other intermediary other than Commercial- Industrial Realty Company (C.I.R.), and that no other broker or intermediary called the Leased Premises to TENANT'S attention for lease or to any part in any dealings, negotiations, or consultations with respect to the Leased Premises, or this Lease. TENANT shall indemnify and hold LANDLORD harmless for any damage or liability of LANDLORD caused by any breach of this representation and warranty. 43. NOTICES. A. Any notice by TENANT to LANDLORD must be served by Certified Mail postage prepaid, addressed to LANDLORD at LANDLORD'S odginal address, or at such other address as LANDLORD shall designate to TENANT by wdtten notice, which change of address by LANDLORD shall not be effective unless received by TENANT. B. Any notice by LANDLORD to TENANT must be served by Certified Mail, postage prepaid, addressed to TENANT at the Leased Premises, or at such other address as TENANT shall designate to LANDLORD by written notice, which notice of change of address by TENANT shall not be effective unless received by LANDLORD. 44. SEVERASILITY. Each of the sections of this Lease is separate and severable, and if any section is found to be unenforceable or void, either by statute or decision of a Court, the remaining sections shall nevertheless be valid and enforceable. 45. CORPORATE TENANTS. In the event the TENANT hereunder is a corporation, the persons executing this Lease on behalf of the TENANT hereby covenant and warrant that: a) The TENANT is a duly constituted corporation qualified to do business in the state in which the Shopping Center is located; all TENANT'S franchise and corporate taxes have been paid to date; all future forms, reports, fees, and other documents necessary for TENANT to comply with applicable laws will be filed by TENANT when due; and such persons are duly authorized by the governing body of such corporation to execute and deliver this Lease (including the confession of judgement provisions hereinbefore contained) on behalf of the corporation. 46. EXECUTION OF LEASE. The submission of this Lease for examination does not constitute a reservation of or option for the Leased Pramises or any other space within the Shopping Center, and shall vest no right in either party. This Lease shall become effective as a Lease only upon execution and legal delivery thereof by the pasties hereto. This Lease may be executed in more than one Counterpart, and each :-nh counterpart shall be deemed to be an original document. 47. SECURITY. The TENANT has this day deposited with LANDLORD the amount Four Thousand Three Hundred Dollars ($4,300) as secudty for the full faithful performance by the TENANT of all the terms, covenants and conditions of this Lease upon the TENANT'S part to be performed, which said sum shall be returned to the TENANT after the time fixed as the expiration of the term herein, provided the TENANT has full and faithfully carded out all of said terms, covenants, and conditions on TENANT'S part to be performed. LANDLORD shall have the dght, but not the obligation, to apply any part of said deposit to cure any default of TENANT and if LANDLORD does so; TENANT shall, upon demand, deposit w~th LANDLORD the amount so applied so that LANDLORD shatl have the full deposit on hand at all times dudng the term of this Lease. In the event of a sale of the building, or lease of the land on which it stands, subject to this Lease, the LANDLORD shall have the dght to transfer the secudty to the vendee or lessee and the LANDLORD shall be considered released by the TENANT from all liability. 48. FIRST MONTH'S RENT. Contemporaneously with the execution of this Lease, TENANT shall pay to LANDLORD the first one (1) month's rent in advance which shall be applied against the first one (1) month's rent when the same comes due. 49. LANDLORD RESTRICTION. Landlord agrees that it will not lease any leasable space in the Center to any current or future tenant whose intended use will be that of a nature consisting of selling or promoting pomogrephic or adult related material including, but not limited to, video stores, sex shops, and "strip" bars. SIGNATURE PAGE FOLLOWS. IN WITNESS WHEREOF, LANDLORD and TENANT have duly executed this Lease as of the day and year first above written. WITNESS: LANDLORD: )ERTIES ~a"a,~"]..-Nalbandian, General Partner WITNESS: TENANT: Starstruck Studio of Dance ~uaran(.~z -"Jennifer McCormick /~U~F~ntor - Jeremy McCormick - If TENANT is a corporation, Lease should be executed by the President or Vice President, and Secretary or Treasurer, and the corporate seal shoutd be affixed hereto. - If TENANT is a partnership, alt partners should execute this Lease. - If TENANT is an individual or partnership, all signatures should be witnessed. 3_6 EXHIBIT EXHIBIT "B" SPECIFICATIONS (LANDLORD'S WORK) Store No.: 118 & 120 Location: Skyport Plaza The following finishes to be supplied by LANDLORD at LANDLORD'S expense: Tenant accepts the store "as is" subject to Landlord's warrant of all plumbing and HVAC which shall be in good working order at the commencement of Tenant's occupancy and Landlord further warrants same for the first ninety (90) days of occupancy. 1, Floor covering: 2, Walls: 3. Ceiling: 4. Electrical: 5. Heat: 6. Air conditioning: 7. Plumbing: 8. Windows Cement slab (with carpet) "as is" Drywall (taped and sparkled) "as is" 4' x 8' drop ceiling (damaged ceiling tiles to be replaced) 225 AMP "as is" 5-ton HVAC unit "subject to ninety (90) day warranty" 5-ton HVAC unit "subject to ninety (90) day warranty" Broken window above front door to be repaired EXHIBIT "C" TENANT'S WORK (TENANT'S store plan to be attached) Subject to approval in writing by Landlord and subject to Tenant obtaining all necessary state and local permits for occupancy of its intended use at ~ts sole cost. All work to be performed at Tenant's sole cost, 19 Sharon Chambers Jennifer McCormick Jeremy McCormick Starstruck Studio of Dance (717) 737-3778 (phone) (717) 790-0956 (fax) To Whom It May Concern: In regards to the Skyport Plaza property, at 6108 Carlisle Pike, enclosed you will f'md the proposal of build out to be done by the tenants. This proposal does not include the following: 1 .) Removal of the current carpeting in the front area of the space (approximately 20 sq.ft.x30sq.f~.) and the replacement of new carpeting. 2.) The installation of linoleum tiles in two rooms, replacing the existing carpet. Please include these additional tenant improvements along with the improvements outlined in the proposal by Jack Barton Construction. Sincerely, · Sharon Chambers, Jennifer McCormick, Jeremy McCormick }'ACK BARTON CON~, £RUCTION, INC. I---- C' ;NERAL CONTRACTOR I I August 5, 1999 Jennifer McCormick 4713 CARLISLE PIKE MECHANICSBURG, PENNSYLVANIA 17055 (717) 731-9439 FAX(717) 731-9461 Re: Interior Modifications Sloyport Plaza Mechanicsburg, Pa 17055 Proposal/Agreement We propose to provide all labor, material and equipment necessary to complete the following Scope of Work: 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) Remove approximately 90 In ii of walls as designed. Cut in doorway in backroom to access fire exit. Remove existing carpet throughout space, except in (2) offices. Remove (8) doors in visible space and demo area. Erect approximately 112 In ii of partition wall using 3 5/8" steel studs and track. Supply and install 3 ½" fiberglass insulation in new partition walls. Hang, tape and finish ½" drywall on new partition walls, ready for paint. Install (7) new solid core Birch doors with applicable hardware as designed. Install (14) code required receptacles in new walls only. Supply and install (2) exit signs in hallway as required. Total Proposal/Agreement ............... $11,796.00 *Note: Payment Terms: 50% due upon 50% completion. acceptance. Berber carpet can be supplied and installed for $2.00/sq f. Respectfully Submitted, Balance due in full upon completion and EXHIBIT "D" SIGNS It is understood and agreed that the TENANT shall have the dght to signee similar to signs presently located in the Shopping Center which the Demised Premises is a part, or signage which falls under the specifications set forth, whichever policy is then in effect. TENANT shall present to LANDLORD pdor to construction and installation of any ~ion, a professionally drawn rendering specifying size, material, coloring, copy, and any other specifications included but not limited to lighting and electrical load. A. Signs shall be designed in accordance with local code requirements and regulations outlined in these Criteria, and TENANT must secure required permits from the Township. B. No signs, other than at the locations outlined in these Cdtada, will be permitted on any other frontage of any Leased Premises or building. C. Signs shall be interior lighted with plexiglass facing. D. No detached signs of any kind shall be permitted. No exterior theatre attraction boards or changeable letter signs shall be permitted without written permission and only then on a one-time basis. E. Except as herein provided, TENANT shall not be entitled to place any sign or advertising matter on the outer surface of the perimeter or surfaces of the Leased Premises, nor shall TENANT be entitled to place any sign on the roof of the Leased Premises. F. No flood lighting of signs or storefronts by TENANT shall be permitted. G. The sign, design, color, material, specific location, content, type of construction, method of mounting and illumination of each sign, as well as TENANT'S storefront design shall be subject to the approval of the LANDLORD. TENANT shall submit complete, detailed drawings, containing all of the above information for each sign to LANDLORD, for review and approval, along with actual samples of all sign materials. H. LANDLORD at his absolute discretion reserves the dght to waive any of the above provisions when circumstances warrant such action. LANDLORD may also amend the sign specifications from time-to-time. I. All signage shall occupy no more than eighty (80%) pement of the store frontage, and at least 2" away from lease line and centered within the center burgundy band. J. TENANT is permitted to place in the intedor of the Leased Premises, including on the glass of any window or door of the Leased Premises, neat, professionally prepared signs which are presented in good taste, without the consent of LANDLORD required, if, however, the LANDLORD in its reasonable judgement deems the signs offensive, TENANT shall remove same within two (2) days after written notice thereof by LANDLORD. TENANT shall, at its sole cost and expense, maintain such sign, decoration, lettering, or advertising matter as may be permitted hereunder, in good condition and repair at all times. 20 EXHIBIT "E" CONTRACTOR'S WAIVER OF LIEN 1. Affiant holds the position of with a licensed general contractor, a licensed subcontractor or materialman (herein called "Contractor" for purposes of convenience) and is authorized to give this Waiver of Lien on behalf of said entity. 2. This Waiver of Lien is given to (herein called "LANDLORD") for the benefit of LANDLORD, it= lenders and their respective title companies, with the understanding that they may rely on this Waiver of Lien. 3. Contractor has contracted with ("TENANT") for certain services, materials, supplies, machinery and/or fixtures for the alteration and improvement of Premises known as Store No. , (the "Premises"), located at (The "Shopping Center"). 4. Contractor has not entered into any contract, written or oral, with LANDLORD or any agent or contractor of LANDLORD for the improvement of LANDLORD'S interest in the Shopping Center, Contractor agrees that neither it, nor any subcontractor or materialman, nor any other person furnishing labor or materials shall file any lien or assert any dghts against LANDLORD or LANDLORD'S interest in the Shopping Center, or any Portion thereof and, furthermore, each of them hereby waives any liens or assertion furnished under any supplemental contract or arrangement for extra work in the erection, construction, and completion of such building, buildings or improvements. 5. Pdor to permitting any subcontractor or materialman to perform services or furnish material, Contractor will obtain and deliver to LANDLORD an executed Waiver of Lien in this form from each subcontractor or materialman. 6. Contractor agrees to indemnify and hold harmless LANDLORD, its lenders and their respective title companies from any and all claims, actions, demands, costs and expenses whatsoever including Premiums on bonds and reasonable attorney's fees at trial and on appeal arising out of or concerning this Waiver of Lien. 7. Nothing herein shall abddge or abrogate the right of the Contractor to assert any lien dghts which it has or may have against any interest of TENANT in the Premises. 8. This Waiver of Lien shall be binding upon the Contractor, its heirs, successors, and assigns and shalt inure to the benefit of LANDLORD and the partners therein, and their respective successors, heirs, and assigns. 9. For the purpose of affecting the Waiver of Lien contained herein, such Waiver of Lien shall be deemed a part of the Contractor's contract as described in Paragraph 3 above, but it is understood and agreed that LANDLORD shall have no liability to the undersigned with respect to said contract. 10. In the event any mechanics's lien or claim is filed by Contractor, Contractor hereby irrevocably waives any dght to a jury trial in any action to stdke or discharge the lien. 11. If the Contractor files a mechanic's lien, notwithstanding this Waiver, LANDLORD or the of LANDLORD shall have the dght to discharge the lien by appropriate legal proceedings and the right to be completely reimbursed and indemnified by Contractor against expenses and losses resulting from such lien. Such expenses and losses shall include any attorney's fees, surety bond premiums and other costs incurred in attempting to discharge or remove each lien, and any damages or other losses resulting from such lien, all of which the Contractor agrees to pay. 12. Contractor hereby warrants and represents that at the time of execution hereof, no work of any kind has 23. been done and no materials or supplies of any kind have been furnished in connection with work in the Premises. 13. This Agreement and stipulation is made and intended to be filed with the County Prothonotary in accordance with requirements of Section 402 of the Mechanics' Lien Law of 1963 of the Commonwealth of Pennsylvania (49 P.S. Sec. 1402) IN WITNESS WHEREOF, the undersigned has hereunto set its hand and seal this Day of ,19 If Contractor is a Corporation: CONTRACTOR: By: Title: ATTEST: If Contractor is an individual or partnership: By: Signed, Sealed, and Delivered in the Presence of: 22 Dated this RIDER NO. 1 dayof j~, ff;attachedto, and made a part of Lease Agreement dated the~day of ~ ~ LANDLORD agrees that LANDLORD will, in good faith, attempt to have the Leased Premises ready for completion on or about August 1 ,19 99 LANDLORD further agrees that, as part of the completion of the Leased Premises, LANDLORD will perform, at LANDLORD'S sole cost and expense, all work which is specified in Exhibit "B" attached hereto. Under no circumstances shall LANDLORD be liable to TENANT in damages for any failure (complete or partial), delay in commencing or completing the Leased Premises. LANDLORD'S work shall not be deemed incomplete if only minor or nonsubstantial details of construction, decorating, landscaping, or mechanical adjustments remain to be done in the Leased Premises. In any event, where either party hereto is reduirad to do any act, delays caused by or resulting from Acts of God, war, civil commotion, fire or other casualty, labor dif~culties, shortages of labor, materials or equipment, government regulations or controls, weather conditions or other causes beyond such party's reasonable control shall not be counted in determining the time dudng which such work shall be completed, whether such time is designated by a fixed rate, a fixed time, or a "raasonable timer". In any case where work is to be paid for out of insurance proceeds or condemnation awards, due allowance shall be made, both to the party required to perform such work and to the party required to make such payment, for delays in the collection of such proceeds and awards. TENANT covenants and agrees to pay LANDLORD rent for the Leased Premises beginning with the first day of September, 1999. 23 RIDER NO. 2 attached to and made a part of L~ase Agreement dated the Provided TENANT has not been in default in any of the provisions of this lease during the expired term hereof, LANDLORD hereby grants to TENANT two ( 2 ) option(s) to renew the term of this Lease for two ( 2 ) additional term(s) of three ( 3 ) year(s) each, subject to the same terms, costs, and conditions as are herein stated, except t~at during any renewal term or terms, the basic annual rent payable under this Lease shall be adjusted by three percent (3%) per annum. The exercise of any option provided for in this Paragraph shall be in writing signed by TENANT (and any guarantor of the LANDLORD) no later than six (6) months pdor to the expiration of the then current term. Default for the purposes of this paragraph shall mean the receipt dudng the expired team of the Lease of a "Notice of Default" even though the default was corrected. LEAS ES\STARSTRUCK. LS~:\REV 8/2/99 commercial-industrial realty company New America International Via Airborne Express October 19, 2000 Gary L. Nalbandian Anthony J. Nestico, Esq. Nestico & Druby, LLP 840 East Chocolate Avenue Hershey, PA 17033-1213 Re" Lease agreement dated August 9, 1999 between Skyport Properties and Starstruck Studio of Dance Dear Mr. Nestico: tn response to your letter, dated September 19, 2000, Skypod Properties has agreed to release Sharon Chambers, a guarantor of the lease, from any further obligation to the above-referenced lease agreement. We feet that the Settlement and release agreement sent to us goes beyond the scope of the issue at hand and, therefore, are sending this letter in lieu of that document. Please have Ms. Chambers sign where indicated on both copies of this letter, return them to me for signature and an original will be forwarded back to you. If you have any questions, please feel free to call Anita Coakley or myself at 717- 761-5070. Sincerely, NAI/Com~ercial-lndustrial Realty Company (CIR) Gary L. Nalbandian GLN/ah enclosure IL87032JG cc: Anita Coakley Glenn Davis, Esq. " Sharon~C~hambers Gary~r.-Nd~dandian, ot~r 200 citie~ ,n~J~': T/~ t/niter/States COMMERCIAL REAL ESTATE SERVICES, \'<'ORL Date: Date: SHERIFF'S RETUR/q - NOT FOUND CASE NO: 2003-03380 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SKYPORT PROPERTIES VS MCCORMICK JENNIFER ET AL R. Thomas Kline duly sworn according to law, inquiry for the within named DEFENDANT MCCORMICK JENNIFER unable to locate Her in his bailiwick. COMPLAINT & NOTICE , ,Sheriff or Deputy Sheriff, who being says, that he made a diligent search and but was He therefore returns the the within named DEFENDANT 876 MANDY LANE CAMP HILL, PA 17011 BELIEVED TO BE LIVING IN BOSTON AREA. NO FORWARDING AT POST OFFICE. , NOT FOUND , MCCORMICK JENNIFER Sheriff's Costs: Docketing 18.00 Service 10.35 Not Found 5.00 Surcharge 10.00 .00 43.35 So answers~.~ J R. Thomas Kline Sheriff of Cumberland County KNUPP KODAK IMBLUM 07/29/2003 Sworn and subscribed to before me this ~ ~ day of ~ ~3 A.D. ProtHonotary ; as to SHERIFF'S RETURN - NOT FOUND CASE NO: 2003-03380 P COMMONTWEALTH OF PENNSYLVAi~IA COUNTY OF CUMBERI2IND SKYPORT PROPERTIES VS MCCORMICK JENNIFER ET AL Thomas Kline duly sworn according to law, says, that he made a diligent inquiry for the within named DEFENDANT MCCORMICK JENNIFER D/B/A STARSTRUCK STUDIO OF DANCE unable to locate Her ,Sheriff or Deputy Sheriff, who being search and but was in his bailiwick. He therefore returns the COMPLAINT & NOTICE the within named DEFENDANT , STARSTRUCK STUDIO OF DANCE , 876 MANDY LANE CAMP HILL, PA 17011 BELIEVED TO BE LIVING IN BOSTON AREA. NO FORWARDING AT POST OFFICE. , NOT FOUND MCCORMICK JENNIFER D/B/A , as to Sheriff's Costs: Docketing 6 Service Not Found 5 Surcharge 10 21 00 00 00 00 00 00 ~ R. ~omas Kl-i-ne Sheriff of Cumberland County KNUPP KODAK IMBLUM 07/29/2003 Sworn and subscribed to before me this ~ day of ~ ~3 A.D. prat h~ot ary~