Loading...
HomeMy WebLinkAbout03-3973DAVID FOORE t/dPo/a B&B HOCKEY and LISA FOORE, Plaintiffs V. LADY REMLYN, INC. Defendant IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COLrNTY, PENNSYLVANIA Civil Action - Equity Case No. 03-3973 Equity Term NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the 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. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 NOTICIA Le hah demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas diguientes, usted tiene vieme (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 avidaso que si usted no se defiende, la corte tomara medidas y puede 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 TINE 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 ABAJOPARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 Respectfully submitted, CUNNINGHAM & CHERNICOFF, P.C. Date: By: I.D. #83087 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17106~0457 (717) 238-6570 (Attorneys for Plaimiff) AUG1 4 2003 DAVID FOORE t/d/b/a B&B HOCKEY and LISA FOORE, Plaintiffs V. LADY REMLYN, INC. Defendant 1N THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Equity COMPLAINT The ~oore, trading and doing business as B&B Hockey, and Lisa Foore, by ~¢~.~~ :gham & Chemicoff, P.C., against Lady Remlyn, Inc., is as 1. mtiff, David Foore, ("Plaintiff") trading and doing business as B&B Hockey, is a sole proprietorship having a place of business located at 111 West Main Street, Hummelstown, Pennsylvania, 17036 ("B&B Hockey East"). B&B Hockey is in the business of retail sale of hockey and skating equipment. 2. Plaintiff, Lisa Foore, is an adult individual cmrently residing in Lebanon County, Pennsylvania. 3. Defendant, Lady Remlyn, Inc. ("Defendant") is a Pennsylvania corporation having a mailing address at P.O. Box 1123, Camp Hill, Pennsylvania, 17011. 4. The parties to this action entered into a written Lease Agreement dated March 12, 2002 (the "Lease Agreement") whereby Plaintiff leased 1,475 square feet of retail space within the building designated as Suite F, St. John's Place, located at 4401 Carlisle Pike, Hampton Township, Cumberland County, Pennsylvania (the "Leased Premises" or "B&B Hockey West"). A true and correct copy of the Lease Agreement is attached hereto as Exhibit "A" and incorporated herein by reference. 5. On or about June 1,2003, without prior warning, Defendant changed the locks to the Leased Premises, took possession of ail of the Plaintiff's inventory, equipment, and assets located on the Leased Premises; moved all of the inventory, equipment, and assets to an undisclosed location without notice to or the consent of Plaintiffs; and have refused to allow the Plaintiffs to re-enter the Leased Premises. 6. A partial listing of the Plaintiffs' inventory, equipment, and assets is attached hereto and labeled Exhibit "B". 7. After Plaintiff and Defendant entered into the Lease Agreement, Plaintiff began experiencing a cash flow shortage as a direct result of the unexpected closure ora local skating rink. 2 8. After attempting to negotiate a rent reduction agreement with Defendant in March, 2003, Plaintiff determined that it could not operate profitably at the Leased Premises. Plaintiff immediately notified Defendant of its decision to close B&B Hockey West and to relocate all inventory, equipment and assets to B&B Hockey East. A notice advising all customers of the decision to move to B&B Hockey East was posted conspicuously at the Leased Premises on or about March 15, 2003. 9. Pursuant to the Lease Agreement, non-payment of rent does not constitute a default under the Lease Agreement unless such rent remains unpaid for a period of five (5) days after the date it is due. 10. Pursuant to the Lease Agreement, monthly rent in the amount orS 1,720.83 is due on the first day of each month. 11. All rent due pursuant to the Lease Agreement was paid by Plaintiff to Defendant through May 31,2003. Accordingly, Plaintiffwas not in default under the Lease Agreement for non- payment of rent as of the date that Defendant took the unilateral action referenced in Paragraph 5 above. 12. The terms of the Lease Agreement do not waive the necessity of the Defendant to demand payment of rent or the statutory provisions of a notice to quit. 13. No demand for payment of rent was made by Defendant before it took the unilateral action referenced in Paragraph 5 above. 14. No notice to quit or notice of termination of the Lease Agreement has ever been made by Defendant to Plaintiff as is required by the Lease Agreement and by statute. 15. On June 23, 2003, the undersigned counsel contacted counsel for Defendant by telephone to negotiate the remm of Plaintiff's inventory, assets and equipment. During the June 23, 2003, telephone conference between counsel, an agreement resolving all matters between Plaintiff and Defendant was reached. This agreement included the return of all of Plaintiff's inventory, equipment, and assets. 16. Shortly thereafter, and pursuant to the agreement referenced in Paragraph 15 above, Plaintiff contacted Defendant to schedule a time during which Plaintiff could retrieve all of its inventory, equipment, and assets. At that time, Defendant informed Plaintiffthat it would not be returning any of Plaintiff's inventory, equipment, or assets, notwithstanding the prior agreement to do so. 17. Contemporaneously with the negotiations referenced above, Defendant was engaged in the process of removing all of Plaintiff's inventory, equipment and assets from the Leased Premises. 18. Plaintiff believes, and therefore avers, that Defendant never had any intention of honoring the terms of the agreement reached by and between the parties as referenced in Paragraph 15 above. 19. On or about August 8, 2003, Defendant sent correspondence to Plaintiff attempting to distrain the Plaintiff's inventory, equipment and assets located upon the Leased Premises. The August 8, 2003 correspondence requests payment in the amount of $2,000.00 and includes a statement that all inventory, equipment and assets will be disposed of on Friday, August 15, 2003, unless arrangements to retrieve same were made by Plaintiff prior to such date. The August 8, 2003 correspondence also includes a statement that the Defendant would not return a certain piece of equipment referred to as a "skate sharpener" and all related equipment. A true and correct copy of the August 8, 2003 letter is attached hereto and incorporated herein as Exhibit "C". 20. The skate sharpener and related equipment referenced above has a fair market value of approximately $13,000.00 and is not owned by Plaintiffs. To the contrary, the skate sharpener is the property of Fulton Bank and is located on the Leased Premises pursuant to a Lease Agreement by and between Plaintiff, as Lessee and Fulton Bank, as Lessor (the "Skate Sharpener Lease"). 21. Fulton Bank also possesses a valid, perfected security interest and lien against all of the Plaintiff's inventory, equipment and assets previously located on the Leased Premises. 22. Plaintiff has been advised that Defendant contacted Fulton Bank and advised Fulton Bank that Plaintiffs had abandoned the Leased Premises mad all of the inventory, equipment, and assets located therein. 23. As set forth above, Plaintiff did not abandon the Leased Premises or any of the inventory, equipment and assets located therein. To the contrary, Defendant has wrongfully denied Plaintiff access to the Leased Premises to recover the inventory, equipment and other assets. 24. Based upon the Defendant's misrepresentations to Fulton Bank, Fulton Bank has released its secured interest in and lien against the skate sharpener and related equipment. Fulton Bank may have also released its interest in the inventory, assets and other equipment previously located upon the Leased Premises. 25. Fulton Bank has also indicated that it will seek to recover from Plaintiffs the sums due under the Skate Sharpener Lease and other loan facility secured by the inventory, assets and equipment located at the Leased Premises. 26. Defendant's unlawful self-help actions have deprived Plaintiffs of their lawful right to use and possession of the inventory, equipment and assets. Plaintiffs has been unable to sell the inventory previously located upon the Leased Premises in the ordinary course of business. Plaintiffs have also been unable to utilize the equipment and other assets to its detriment. COUNT I - CONVERSION 27. Plaintiffherein incorporates by reference each and every averment above as if more fully set forth. 28. Defendant knowingly and without Plaintift's consent, has retained, confiscated, and removed all of the inventory, equipment and other assets which are essential to the Plaintifffs business operations. 29. Plaintiff has repeatedly made demands upon Defendant to return all inventory, equipment and assets located upon the Leased Premises, and Defendant has repeatedly refused to do SO. 30. The Defendant's wrongful denial of access to the Leased Premises has interfered with the Plaintiff's ability to conduct its business in the ordinary course. 31. Defendant has knowingly and without justification, removed most of the inventory, equipment and assets located upon the Leased Premises, has refused to give an accounting for same, and to date, has refused to return any of the inventory, equipment and assets, despite Plaintiff's repeated demands that Defendant do so. 32. Plaintiffhas been advised that Defendant intends to sell all of the inventory, equipment and assets, all of which are subject to the valid lien and security interest of Fulton Bank, thereby causing Plaintiff immediate, continual and irreparable harm. 33. If Defendant sells the inventory, equipment and other assets located upon the Leased Premises, then Plaintiffs may be subject to suit by Fulton Bank pursuant to the Skate Sharpener Lease and other loan facilities secured by the inventory, assets and equipment. 8 34. As a direct and proximate result of the Defendant's actions, as referenced above, Plaintiff has suffered and is continuing to suffer immediate and irreparable harm, which harm is likely to continue and which harm cannot adequately be remedied at law. WHEREFORE, Plaintiffs request that an injunction issue, preliminarily, until file hearing and permanently thereafter ordering the following relief: (a) That the Defendant immediately return to the Plaintiffs, all of the inventory, equipment and other assets presently in the Defendants possession; (b) That the Defendant return to Plaintiffs, all of the moneys received as a result of the sale of any inventory, equipment, or assets; (c) That the Defendant provide an accounting for all of the inventory, equipment or other assets sold; and (d) That the Defendant make the Plaintiff whole for each of the items sold by Defendant at the then fair market value of same. COUNT II - BREACH OF CONTRACT 35. Plaintiffs herein incorporate each and every averment above by reference as if more fully set forth. 9 36. Pursuant to the terms and conditions of the Lease Agreement, Defendant was required to give Plaintiff notice of its intent to declare a forfeiture of the Lease. 37. Defendant failed to give Plaintiff a requisite notice of its intent to declare a forfeiture. 38. On or about June 1, 2003, without warrant or authority for taking possession of the Leased Premises, Defendant initiated a "self-help" lockout of the Plaintiffs and its employees without providing to the Plaintiff the opportunity to remove all of its personalty, including the inventory, equipment and assets owned by the Plaintiff and by Fulton Bank. 39. As a result of the Defendant's actions, Plaintiff has been placed in a situation where it may have defaulted on the Skate Sharpener Lease and other loan facilities to Fulton Bank and other third parties. 40. As the direct result of the Defendant's actions, Plaintiff is at risk of suit and liability to Fulton Bank under the Skate Sharpener Lease and other loan facilities secured by the inventory, equipment and assets located upon the Leased Premises. 10 41. As a direct and proximate result of the Defendant's action in retaking possession of the premises, Plaintiff has been denied the benefit of the Lease Agreement and the benefit of the inventory, equipment and other assets located on the Leased Premises. 42. On or about June 23, 2003, Plaintiff was lead to believe that an agreement resolving all disputes between Plaintiff and Defendant was reached such that Plaintiff would be entitled to retrieve ail of its inventory, equipment and assets without further obligation to Defendant. Plaintiff believes, and therefore avers, that Defendant never had any intention of honoring the agreement reached as referenced above. 43. Plaintiff has numerous meritorious defenses to defend its claim of entitlement to possession of the inventory, equipment and assets located upon the Leased Premises, including, but not limited to: (a) Plaintiff was never served with a Notice to Vacate the premises in conformity with the applicable provisions of the Landlord/Tenant Act of 1951, nor has it ever waived its right to receive such notice. (b) Service upon Plaintiff of a proper statutory Notice to Quit was, and remains, a jurisdictional prerequisite to the commencement by the Defendant of a landlord/tenant action for possession. 11 (c) A landlord who desires to repossess leased premises from a tenant may not undertake self-help eviction of dispossession of a tenant since the landlord's only remedy to evict a tenant is to bring an action under the Landlord/Tenant Act or an action in ejectment. Lenair v. Campbell, 31 D&C 3d 237 (1948), and 68 P.S. §250.101 et seq. (d) A landlord is not entitled to forfeiture where tenant is late in paying rent where other similar delays were not complained of. Moreover, where a tenant fails to make a payment of rent under the terms of the lease, which non-payment gives the landlord right to declare a forfeiture for this reason, if, before forfeiture is declared by the landlord, the rent is paid, the right to take advantage of the default is lost as a forfeiture has passed. Pleasure Harbor Marina, Inc. v. Boyle, 282 Pa. Super. 8, 422 A.2d 649 (1980). (e) Unless demand for rent is expressly waived by the terms of the lease, a demand by the landlord is absolutely essential to work a forfeiture for non-payment of rent. Where there is a condition of reentry on non-payment of rent, to entitle the landlord to reenter, the landlord must demand the precise rent due on the day on which it becomes due at the most notorious place on the land, and the demand must actually be made on the land, although there is no person on the land ready to pay the rent. Elizabethtown Lodge. Loyal Order of Moose v. Ellis, 391 Pa. 19, 137 A.2d 286 (1958). 12 (f) The law does not favor forfeiture, and a forfeiture of a leasehold must be strictly construed. (g) The party seeking the benefit ora forfeiture for breach of the lease has the burden of showing the breach is so substantial as to justify regarding the whole transaction has ended. WHEREFORE, Petitioner/Plaintiff, Gourmet Gardens, Inc., prays your Honorable Court: (a) Pursuant to Pa. R.C.P. No. 1531(a) issue a preliminary or special injunction prior to written notice to the Defendant enjoining the Defendant from marketing or selling any of the inventory, equipment and assets, and to do so without the necessity of posting bond, and upon hearing, grant a permanent injunction enjoining the Defendant from denying Plaintiff free and peaceful ingress to and egress from the Leased Premises for the limited purpose of retrieving all of the inventory, equipment, and assets located upon the Leased Premisses as of June 1, 2003, until further Order of this Court. (b) Following hearing, award Plaintiff compensatory damages in an appropriate amount as determined by this Honorable Court;. (c) Following hearing, award punitive damages to the Plaintiff in an appropriate amount as determined by this Honorable Court; 13 Date: (d) Enter judgment for the Plaintiff herein and against the Defendant. (e) Grant such other relief as is proper and just. Respectfully submitted, CUNNINGHAM & CHERNICOFF, P.C. Henry W.V~ Eck, Esquire I.D. No. 83087 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17110 (717)238-6570 14 08/14/03 12:46 FAX 717 7:37 0293 SUN MOTORCARS [~002 VERIFICATION I, David Foore t/b/d/a B&B Hockey, verify that the statements made in the foregoing Complaint ~rc true and correct to th~ best of my knowledge, m~ormaUon, ~ntt be ~ef. I understand that false statements herein made are subject to the penalties of I g Pa. C.S,A Section 4904, relating to tmswom ~hlsification to authorities. DAVID FO OPd:~ AUG-14-2003 13:03 717 ?S? 0293 96% EXHIBIT"A" Lease Agreement Dated Between Lady Remlyn, INC. and This Submission of this Lease to Tenants shall not be construed as an offer, nor shall Tenant have any rights with respect thereto, unless and until Landlord shall execute a copy of this Lease and deliver the same to Tenant. Lease THIS LEASE MADE AND EXECUTED, as of the /2. day of $ ,.~oo2. by and between Lady Remlyn, a Pennsylvania corporation, with a mailing address of P.O. Box 1123, Camp Hill, Pennsylvania 17001 (herein called "Landlord"), and Dave Foore, and Lisa Foore, t/dPo/a B 8: B Hockey. Landlord does hereby lease unto Tenant the "Premises" at the "Rent" for the "Term" for the "Permitted Use" upon and under the following terms and conditions: ARTICLE I. PEMISES Section 1.1 Demise. Landlord hereby leases to the Tenant and Tenant hereby leases from the Landlord fourteen hundred and seventy five feet (1475) of retail space within the building ( the "Premises") designated as Suite F, located at St. John's Place, a retail shopping center, owed by the Landlord,and located at 4401 Carlisle Pike, Hampden Township, Cumberland County Pennsylvania. The location of the Premises within the center is shown on a drawing attached hereto as Exhibit "A'. Section 1.2 Mechanics Liens. Landlord is delivering the Premises in "as in" condition. Tenant has inspected the Premises, warrants that they understand the existing condition of the Premises and any and all additional interior work shall be the responsibility of the Tenant at Tenants sole cost. Tenant at all times shall not permit a mechanic's lien or other similar lien to be placed on the Premises, Tenant's fixtures, equipment or the Center. Section 1.3 Restrictions on Alterations. Tenant will not make any alterations, renovations, improvements or other installations in, on or at the Premises or any part thereof (including, without limitation, any alterations, of-the store front or signs, structural alterations, or any cutting or drilling into any part of the Premises or any securing of any fixture, apparatus, or equipment of any kind to any part of the Premises) unless and untilTenant shall have caused plans and specification therefor to have been prepared, at Tenant's expense, by a duly qualified person and shall nhave obtained Landlord's approval thereof, which approval shall not be withheld unreasonably. If such approval is granted, Tenant shall cause the work described in such plans and specification to be performed, at its expense, promptly, efficiently, completely and in a good and workmanlike manner by duly qualified or licensed persons or entities, using first grade materials. All such work shall comply with all applicable governmental codes, rules, regulations and ordinances. Section 1.4 lmorovements and Eauioment. Except as otherwise hereinafter provided, all alterations, improvements, furnishings and other eqaipmcnt installed in the Premises by Tenant and paid for by it shall remain the property of Tenant and may be removed by Tenant upon the termination of this Lease, provided (a) that any of such 2 items as are affixed to the Premises and required severance shall be deemed the property of Landlord and may be removed only if Tenant shall repair any damage caused by such removal and (b) that Tenant shall have fully performed all of the covenants and agreements to be performed by it under the provisions of their Lease. If the Tenant fails to remove such items from the Premises as of the date of termination of this Lease, all such aitemtions, decorations, additions and improvements shall become the property of the Landlord unless Landlord elects to repair their removal in which case Tenant shall. promptly remove same and repair and restore the Premises to its prior conditions, reasonable wear and tear excepted. Upon such termination, the parties shall be released from any further liability to each other and this lease shall be null and void. ARTICLE II. TERM Section 2.1.Term. The term of this lease shall be for a demised term consisting of 30 months, commencing on (the "Commencement Date") June 1st 2002 and terminating on Nov. 31st, 2005 without the necessary of any notice fi.om either Landlord or Tenant to terminate the same. Tenant hereby agree that if it fails to surrender the Premises at the end of Term, Tenant will be liable to Landlord for any and all damages that l_andlord shall suffer by reason thereof, and Tenant will indemnify Landlord against all claims and demands made by any succeeding tenants against Landlord, founded upon delay by Landlord in delivering possession of the Premises to such succeeding tenant. For the Period of ninety (90) days prior to the expiration of the Term, or any renewal or extension thereof, Landlord shall have the right to display on the exterior of the Premises the customary sign "For Rent"; and during such period Landlord may show Premises and all parts thereof to prospective tenants during normal business hours. Section 2.2. Renewal Ovtion. Provided Tenant is not in default at the time it exercises its option to renew, Tenant shall have the option to renew this lease for two(2) two (2) year terms by giving written notice to Landlord, by ceaified mall, return receipt requested, of such intention to renew not less than nine~ (90) days prior to the expiration of the existing term. Such renewal shall be at the terms, conditions and rents set forth herein, except that the fixed minimum rent shall be increased pursuant to the terms set forth in Section 3. I. ARTICLE HI. RENT Section 3.1. Rent. Tenant shall pay annual minimum rent (herein called the "Minimum Rent) to Landlord for the Premises, payable in equal monthly installments herein called "Monthly Minimum Rent") at the respective rates and for the respective periods hereinafter set forth, in advance without offset, deduction, set-off orcounterclaims on the first day of the Term. Tenant shall pay an annual rent in the amount of $20,650.00 in equal payments of $1,720.83 per month. A rental escalation clause of two (2%) percent shall be due on the second and third anniversary of this lease and all additional renewal options thereof. Tenant shall have the option to renew this lease for two consecutive two year terms commencing on December lSt,2004 and September lSt,2006 respectively, 3 Section 3.2. Late Payments and Interest. There shall be paid a late charge of five (5%) percent on all monies that become more than fifteen (15) days in arrears to cover the expenses in handling delinquent payments. In addition, interest shall accrue on any monies due from Tenant to Landlord from the date the same are due at the annual prime interest rote as established from time to time by Community Bank plus one (1%) percent per annum for a period of thirty (30) days. After such thirty (30) day period, ~ interest shall accrue at the rote of (1½-%) percent per month and each portion thereof for which the sums are unpaid until the same is paid. If Landlord consults any attorney for the collection of any sums from Tenant or other in connection with Tenant's performance hereunder, Tenant shall, whether or not proceeding are instituted, reimburse Landlord the reasonable attorney's fees and court costs, if any. Section 3.3. Security Del~osit. Tenant has deposited with Landlord a sum in the amount of $1,720.83 as a security deposit. This shall be considered as security for the payment and performance by Tenant of all Tenant's obligations, covenants, conditions, and agreements under this Lease. Within ten (10) days after the expiration of the term hereof provided Tenant has vacated the Premises and delivered possession to Laadlord in the condition required hereunder. Landlord shall refund such security deposit to Tenant, less such portion thereof as Landlord shall have applied to make good any default by Tenant with respect to any of Tenant's obligations, covenants, condition or agreements under this Lease or applied toward payment of damages suffered by landlord. In the event any default by Tenant hereunder, Landlord shall have the right to apply all or any portion of the security deposit to secure such default, in which event Tenant shall be obligated to and will, within five (5) days after request from Landlord, deposit with Landlord the amount necessary to restore the security deposit to its original amount aforesaid. The use of said security deposit by Landlord shall not excuse Tenant's liability for default hereunder nor limit Landlord's remedies. In the event of the sale or transfer of Landlord's interest in the building in which the Premises are located, Landlord shall transfer the security deposit to such purchaser or transferee, in which event Tenant shall be entitled to look to the new landlord for the return of the security deposit, and Landlord shall thereupon be released from all liability to Tenant for the return of such security deposit. ARTICLE IV. EXPENSES Section 4.1. Additional Rent. (a) In addition to the Minimum Rent, Tenant covenants and agrees to pay to Landlord as additional rent and amount equal to its proportionate share "Real Estate Taxes" and "Repair and Common Area Maintenance Costs" (as defined in section 4.2 and Exhibit "B" hereof, respectively). Tenant's proportionate share shall be calculated as a fraction which shall have as its numerator the floor area of the Premises and which shall have as its denominator the floor area of alt occupied building in the Center. Landlord shall be entitled to estimate all amounts of additional rent payable by reason of this Sectinn4.1 and to obtain payment in advance on account thereof from Tenant on a monthly basis from and after the Commencement Date. Tenant shall pay to Landlord on the first day of each month such estimated Expenses, and to continue to pay on a monthly basis the estimated Expenses. Within ninety (90 following the expiration of any calendar year in which Tenant shall pay any Landlord's 4 estimated Expenses, Landlord shall submit to Tenant a statement prepared by Landlord summarizing the various amounts incurred during calendar year for Expenses. Within ten (10) days following submission of such annual Statement, Tenant shall pay to Landlord any Expenses remaining due and Landlord shall promptly credit to Tenant's next due payment of Expenses, as provided in this Section 4.1, any overpayment of expenses. (b) For the purpose of this Lease, "floor area of the Premises" shall be deemed tO mean 1475 square feet. Section 4.2 "Real Estate Taxes" Defined. For the purpose of this Lease, the term "Real Estate Taxes" shall mean taxes, rates and assessments, general and special, levied, assessed or imposed by any lawful authority, falling in whole or in part during the term of this Lease, with respect to the land, building, and improvements located or built within the Center.. Should any governmental taxing authority presently or hereafter levy, assess, or impose a tax, excise and/or assessment, however described ( other than income or franchise tax based upon the gross receipts or net income with respect to the Center ), upon, against, on account of, or measured by, in whole or in part, the rent expressly reserved hereunder, or upon the rent expressly reserved under any other leases or leasehold interests in the Center, as a substitute ( in whole or in part ) ( or in addition to any existing Real Estate Taxes ), such tax or excise on rents shall be included within the term Real Estate Taxes. Reasonable expenses, including reasonable attorneys' fees, expert witness fees and similar costs, incurred in contesting or obtaining or attempting to obtain a reduction of any Real Estate Taxes or assessed valuations shall be added to and included in the amount of any such Real estate Taxes. Real Estate Taxes which are being contested shall nevertheless be included for purposes of the computation of the liability of Tenant under this Lease, provided, however, that in the event that Tenant shall have paid any Real estate Taxes and a refund of any portion of any Real Estate Taxes on which such payment shall have been based is thereafter received, Landlord shall credit to Tenant the appropriate portion of such refund. If either the Commencement Date or expiration date of this Lease shall not coincide with the beginning or end ora full lease year, then in computing the amount payable under Section 4.1 for the period between the commencement and/or expiration of the applicable full [ease year, Tenant's proportionate share of Real Estate Taxes for the applicable full lease year shall be equitably apportioned ( on a per diem basis ) so that Tenant shall pay only such portion of such Real Estate Taxes as is attributable to the portion of such full lease year occurring during the term of this iease. Tenant's obligation to pay Real Estate Taxes under section 4.2 for the final lease year shall survive the expiration and/or termination of the of this Lease. If any property tax or assessment If the Center consists of separate tax parcels, then the Real Estate Taxes with respect to all of said separate tax parcels ( whether owned by Landlord and/or entity or entities under common control with Landlord ) shall be included as part of Real Estate Taxes for the purpose of this Lease. ARTICLE V. UTILITIES, TRASH REMOVAL, and JANITORIAL SERVICES Section 5.1. Utilities. Landlord shall pay as and when they become due, directly to the company or utility providing the utility service, all operating expenses incurred in the dally operation of the Center, including but not limited to lawn care and snow removal, common electric, sewer, building insurance and water. Tenant shall pay, at its expense, directly to the utility company: electric, gas and water bills for the Premises. Section 5.2. Refuse, Janitorial and Window CleaninR Services. The Tenant shall not permit the accumulation of rubbish, trash, garbage or other refuse in and around the Premises, will remove the same at his expense. All such refuse shall be kept in areas designated by the Landlord. In the event any local or governmental authority shall lev3/a service fee or charge for the collection and removal of Tenant's refuse, Tenant shall pay promptly when due said fee or charge of service. Tenant shall be responsible for all janitorial services and window cleaning for the Premises, at its sole cost and expense. ARTICLE VI. PERMIITED USE Section 6.1. Permitted Use. Tenant shall occupy the Premises for the sole permitted use for the retail sale of hockey and figure skating equipment. Section 6.2. llle~al Use. The Tenant covenants that at no time or times will the Tenant use or permit to be used the Leased Premises or any part thereof, for any unlawful or illegal purpose or in any unlawful or illegal manner, or for the conduct of any public auction and that the Tenant will not carry on the business under any name or in manner permit any advertising which might, in the reasonable judgment of the Landlord, reflect, or tend to reflect adversely on the building erected or to be erected by the Landlord, or confuse or mislead, or tend to confuse or mislead the public in any apparent connection or relationship, between the Landlord and the Tenant. Section 6.3. Hazardous Activity. Tenant agrees that she will not do or suffer to be done or keep or suffer to be kept, anything in, upon or about the Premises which will conlravene the insurance policies insuring the Center against loss or damage by fire or other hazards, or which will prevent the procuring of such policies in companies acceptable to Landlord; and if anything done, omitted to be done or suffered to be done by Tenant, or kept, or suffered by Tenant to be kept, in, upon or about the Premises or the Center to be increased beyond the minimum rate fxom time to time applicable to the Premises for use for the purpose permitted under this Le_ase or to such other Center property for the use or uses made thereof, Tenant will pay the amount of such increase promptly upon Landlord's demand. ARTICLE VII. PARKING Section 7.1. Parkine Area. The Parties agree that the Landlord shall designate that portion of the parking lot to be used by the employees of Tenant and Tenant's employees shall park in such designated spaces. ARTICLE VIII. COMMON AREAS Section 8.1. Use of Common Areas. The term "common areas" as used in this Lease shall mean the parking areas, driveways, walkways, landscaped areas, berms and other areas and improvements which may be provided for the convenience and use of the occupants and tenants of the Center. During the term of this Lease, and subject to the provision of this Lease, Tenant's use and occupancy of the Premises shall include the 6 non-exclusive use, in common with all other granted fights to use the same and for whose convenience and use the common areas as intended :provided, that such use by Tenant shall be subject to such reasonable rules and regulations governing the same from time to time; and provided, further, that Landlord or any entity or entities under common control with Landlord shall at all times have full control, management and direction of said comnlon areas. Section 8.2. Ri~,ht to Close Areas. Landlord shall have the right to close any Or all portions of the common areas to such extent as may, in the opinion of counsel, be legally sufficient to prevent a dedication thereof or the accrual of any fights to any person or to the public therein, and to close temporarily, if necessary, any part of the common areas in order to discourage non*customer parking and in the exemise of any repair and maintenance obligation or other rights herein reserved with respect to the common areas. If the amount or nature of the common areas and facilities are diminished, this Lease shall remain in full effect, and Landlord shall not be subject to any liability nor will Tenant be entitled to any compensation or diminution of rent, nor shall diminution of such common areas and facilities be deemed constructive or actual eviction. Section 8.3. Common Area Repairs. Landlord shall arrange for the care, maintenance and repair of the common areas on the Center including, but not limited to, repairing, replacing and restriping paved parking areas when needed, keeping common areas reasonably clear of litter and snow, maintaining any plants and landscaped areas and keeping common areas reasonably lighted at times when the stores in the Center are required to be open for business. Section 8.4. Repairs by Landlord. Landlord shall keep and maintain the foundation, roof and structural portions of the walls of the building in good condition and repair at landlord's sole costs and expense, provided Tenant shall provide Landlord with prompt written notice of the necessity therefor. Except as otherwise provided in this Lease, Landlord shall be under no obligation to inspect or repair any part of the Premises. Tenant shall report to Landlord any defective condition actually known to Tenant, which Landlord is required to repair and failure to do so within five (5) calendar days of the time Tenant becomes aware of the defective condition s_hall make Tenant responsible to Landlord for the repair of such defective condition, and any liability, cost or expense incurred by Landlord by reason of failure to so report such defective condition. Landlord shall have a reasonable time after receipt of notice fi:om Tenant to commence and complete repairs required of Landlord hereunder. The provisions of this Section regarding Landlord's obligations shall not apply in the case of damage or destruction by fire or other casualty or by eminent domain, in which events and obligations of Landlord shall be controlled by Articles XI and XII hereof, as applicable. Section 8.5. Rel~airs by Tenant. Tenant shall keep and maintain the Premises and any fixtures, facilities or equipment contained therein in good condition and repair, including, but not limited to, the heating, air-conditioning, electrical, plumbing systems, the exterior doors and window fi:ames and shall make any replacement thereof, with the exception of the heating and air-conditioning unit, and of all broken and cracked plate glass as may become necessary during the term of this Lease, excepting, however, such repairs and replacements as are the obligation of Landlord under Section 7.4 hereof. If 7 Tenant refuses or neglects to commence or complete repairs promptly and adequately, Landlord may, but shall not be required to do so, make or complete said repairs, Tenant shall pay the cost thereof to Landlord upon demand. ARTICLE VIX. INSURANCE Section (c) (d) (e) 9.1. Tenant's Insurance. At all times after the commencement of this Lease, Tenant will carry and maintain, at its expense a non-deductible: public liability insurance policy, including, but not limited to, insurance against assumed or contractual liability under this Lease, with respect to the Premises, to afford protection with limits, for each occurrence, of not less than One Million ( $1,000,000.00 ) Dollars with respect to personal injury and death, and One Million ( $1,000,000.00 ) Dollars with respect to property damage; all-risks property and casualty insurance, written at replacement cost value and with replacement cost endorsement, covering all of Tenant's personal property in the Premises ( including, without limitation, inventory, trade fixtures, floorings, furniture and other property removable by tenant under the provisions of this Lease ) and all leasehold improvements installed in the Premises by or on behalf of Tenant; and if and to the extent required by law, workmen's compensation or similar insurance in form and amount required bylaws Section 9.2. Policy Reouirements. The company or companies writing any insurance which Tenant is required to carry and maintain or cause to be carried or maintained pursuant Section 8.1 as well as the form of such insurance shall at all times be subject to Landlord's approval and any such company or companies shall be licensed to do business in the Commonwealth of Pennsylvania. Public liability and all-risks property and casualty insurance policies evidencing such insurance name Landlord or its designee. Such policy shall not be canc_eled except after thirty (30) days written notice to Landlord or its designee:Each such policy, or a certificate thereof, shall be deposited with Landlord by Tenant promptly upon commencement of Tenant's obligation to procure the same. If Tenant shall fail to perform any of its obligations under Section 9.1 and 9.2, Landlord may perform the same and the cost of same shall be deemed Additional Rental and shall be payable upon Landlord's demand. Section 9.3. Landlord's Insurance. Landlord agrees that the common areas of the Center will be covered by public liability insurance with a minimum combined coverage for bodily injury and property damage of one Million Dollars ($1,000,000.000) and ( ii ) all buildings erected on the Center will be covered by "all risk" property insurance for the full replacement cost of such building and improvements. ARTICLE X. SIGNS AND EXTERIOR ATTACHMENTS Section 10.1. Si~,ns and Conformity. Tenant shall erect and maintain its trade name or store identification sign within the area or areas provided for by Landlord; all such signs shall strictly conform in number, color, style, design and in all other respects to the criteria established by the Landlord for Premises, and shall conform to all local governmental regulations. Any such signage costs shall be paid for by Tenant and all repairs shall be the sole responsibility of Tenant, including replacement of light bulbs. ARTICLE XI. FIRE AND OTHER DAMAGE Section 11.1. Repairs by Landlord. In case of damage to the Premises by a risk insured against under Section 8.3, Landlord, unless Landlord shall otherwise elect as hereinafter provided, shall repair or cause to be repaired such damages with reasonable dispatch after receiving from the Tenant written notice of the damage. If the damages are such as to render the Premises untenantable, the rent shall be abated to an extent corresponding with the period during which and the extent to which the Premises have become untenantable; provided, however, if such damages are caused by the carelessness, negligence, intentional, or willful conduct of Tenant or of a subtenant, or the agents, employees, visitors, invites or licensees of Tenant or of a subtenant, then notwithstanding such damage and untenantability, Tenant shall be liable for ret without abatement. In the event of damage to the Premises to the extent of damage to the Premises to the extent of more then fifty pement (50%) of the value of such Premises, Tenant shall give Landlord written notice of the damage (but failure to give notice shall not be binding upon Landlord), after which either party may determine with reasonable dispatch, that the Lease shall be terminated, in which event all rent shall abate the lease Shall terminate as of the date of the occurrence of the event causing such damage. ARTICLE XII.EMINENT DOMAIN Section 12.1 Effect of Taking. In the event the Premises or any part thereof shall be taken or condemned either permanently or temporarily for any public of quasi public use or purpose by any competent authority in appropriate proceedings or by any right of eminent domain, the entire compensation award therefore, including, but not limited to, ail damages as compensation for diminution in value of the leasehold, reversion, and fee, shall belong to the landlord without any deduction therefrom for any present or future estate of Tenant, and Tenant hereby assigns to Landlord all of its fight, title and interest to any such award. Although all damages in the event of any condemnation is to belong to the Landlord, whether such damages are awarded as compensation for diminution in value of the leasehold, reversion or to the fee of the Premises. Tenant shall have the right to claim and recover from the condemning authority, but not from the Landlord, such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right on account of any and all damages to Tenant's business by reason &the condemnation and for or on account of any cost or loss to which Tenant might be put in removing Tenant's merchandise, furniture, fixtures, leasehold improvements and equipment. If the whole of the Premises shall be taken by any public authority under the power of eminent domain, this Lease shall terminate as of the day possession shall be taken by such public authority, and Tenant shall pay rent up to that date with an appropriate refund by Landlord of such rent as shall have been paid in advance for a period subsequent to the date of the taking. If more than fifty percent (50%) of the floor space of the building in which the Premises are located shall be taken under the power of eminent domain. Landlord may, by notice in writing to Tenant terminate this Lease, and rent shall be paid or refunded as of the date of termination. ARTICLE XIII. NONLIABILITY OF LANDLORD Section 13.l Landlord Not Resoonsible for Acts of Others. The Landlord shall not be liable to the Tenant, any officer, employee, agent, invitee, licensee or visitor of the Tenant, or any other person, for damage or injury to any person or property caused, in whole or in part, by any act, ontission or neglect of Tenant, Tenant's contractors, employees, agents, invitees, licensees or visitors, or any happening in any manner on the Premises, and Tenant shall indemnify, defend and hold harmless Landlord from any claim, loss or liability therefor. Section 13.2 Tenant's Risk. All property kept, stored or maintained on the Premises shall be so kept, stored or maintained at risk of the Tenant only, and thc Landlord shall not bc liable for any loss or damage to the Tenant or Tenant's property. ARTICLE XIV. ASSIGNMENT AND SUBLETTING Section 14.1Landlord's Consent Reauired. Tenant will not assign this Lease, in whole or in part, nor sublet all or any part of the Premises, nor license concessions or lease departments therein, nor pledge or secure by mortgage or other instruments this Lease, without first obtaining the written consent of Landlord, which consent may be withhold in Landlord's absolute discretion. This prohibition includes, without limitation, (i) any subletting or assignment which would otherwise occur by operation of law, merger, consolidation, reorganization, transfer or other change of Tenant's corporate or proprietary structure; (ii) an assignment or subletting to or by a receiver or trustee in any Federal or state bankruptcy, insolvency, or other procee _dings; (iii) the sale, assignment or transfer of all or substantially all of the assets of Tenant, with or without specific assignment of Lease; or (iv) the change in control in a partnership. Consent by Landlord to any assignment or subletting shall not constitute a waiver or the requirements for such consent to any Subsequent assigns or subletting. Any costs and expenses, including attorney's fees, incurred by Landlord in connection with any proposed or purported assignment, transfer or sublease shall be borne by Tenant and shall be payable to Landlord as additional rent. It is understood and agreed that the restrictions set forth in this article area is of primary importance in enabling Landlord to control the mix of Tenants in the Center. Section 14.2Transfer of Landlord's Interest. In the event of any transfer of Landlord's interest in the Premises, including a sale or Lease, the Landlord shall be automatically relieved of any and all obligations accruing fi'om and after the date of such transfer, provided that (a) the interest of the Landlord in any funds then in the hands of Landlord in which Tenant has an interest shall be turned over, subject to such interest, to the transferee; and (b) notice of such sale, transfer or lease shall be delivered to Tenant as required by law and this Lease. 10 Section 14.3 Transfer of Coroorate Shares. If Tenant is a corporation at any time after execution of this lease any part of all of the corporate shares shall be transferred by sale, assignment, bequest, inheritance, operation of law or other disposition ( including, but not limited to, such a transfer to or by a receiver or trustee in a Federal or state bankruptcy, insolvency, or other proceedings) so as to result in a change in the present control of said corporation by the person or persons now owning a majority of said corporate share, Tenant shall give Landlord notice of such event within fifteen (15) days from the date of such transfer. In such event and whether or not Tenant has given such notice, Landlord may elect to terminate this Lease at any time there after by giving Tenant notice of such election, in which event this lease and the rights and obligations of the parties hereunder shall cease as of the date set forth in such notice which date shall not be less then sixty-(60) day after the date of such notice. In the event of any such terminations, all rental (other then any Additional Rental due Landlord resulting from Tenant's failure to perform any of its obligations hereunder) shall be adjusted as of the date of such termination. Section 14.4 Acceotance of Rent from Transferee. The acceptance by Landlord of the payment of rent following any assignment or other transfer prohibited by this Article shall not be deemed to be a consent by Landlord to any such assignment or other transfer nor shall the same be deemed to be a waiver of any right or remedy of Landlord hereunder. ARTICLE XV. VOLUNTARY OR INVOLUNTARY ASSIGNMENT Section 15.1 Landlord's Written Consent. Neither this Lease nor any interest herein shall be assignable or otherwise transferable by operation of law or by voluntary assignment or for the benefit of creditors without the written consent of thc Landlord, and such inhabitation against voluntary assignment includes and comprehends any and every assignment which might otherwise be affected or accomplished by Bankruptcy, receivership, attachment, execution or other judicial process or proceeding. If any assignment for the benefit of Tenant's creditors should be made by Tenant, or ifa voluntary or involuntary petition in bankruptcy or for reorganization or for a arrangement should be filed by or against the Tenant and not dismissed within ninety (90) days, or if the Tenant should be adjudicated a bankrupt or insolvent, or ifa receiver is appointed of or for the Tenant, or for all or a substantial part of Tenant's property, or of such assignment or transfer by operation of law should occur, then and in any such event, the Landlord may, at Landlord's option, terminate this Lease by notice to thc Tenant. The provisions of this paragraph shall not apply to any of the rights, titles and interests of the Landlord n, to or under this Lease. ARTICLE XVLSURRENDER AT LEASE TERMINATION. Section 16.1 Surrender of Premises. The Tenant shall, upon termination oft. be Term of this Lease, surrender to the Landlord the Premises and all building apparatus, machinery, equipment and fixtures situated thereon, except items, which may be removed under Article I. Section 1.5. 11 ARTICLE XVII. DEFAULT AND REMEDIES Section 17.1 .Events of Default. The Lease is made upon the condition that the Tenant shall punctually and faithfully perform all of the covenants and agreements by it to be performed as herein set forth, and if any one or more of the following events shall occur said event shall be deemed a default: (a) any rent or other sums required to be i paid by Tenant hereunder, or any part thereof, shall at any time be in arrears and unpaid for five (5) days after the same is due, (b) or there by any failure on the part of the Tenant in the observance or performance of any of the covenants, agreement, or conditions of this Lease on the part of the Tenant to be kept and performed [other then as set forth at 17.1 (a) ], and said failure shall continue for a period of fifteen (15) days after written 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 default within said fifteen (15) days and continues diligently to pursue the curing to completion, or (c) the Tenant shall file a petition in bankruptcy or be adjudicated a bankrupt, or file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief for itself under any present or future federal, state or other statute, law or regulation, or make an assignment for benefit of creditors, or (d) an trustee, receiver or liquidation of Tenant or of all or any substantial part of its properties or of the Premises shall be appointed in any action, suit or proceeding by or against Tenant and such proceeding or action shall not have been dismissed within forty- five (45) days aRer such appointment, or (e) the Tenant's merchandise or fixtures of Tenant's leasehold estate in the Premises shall be taken on execution or by other process of law, or (f) if Tenant shall remove from the premises during the term or renewal term of this Lease, or cease to use or occupy the same as herein provided, Lessor may, at its option, immediately and without liability therefor, re- enter said premises without notice or demand, and lease the said premises to any other person or persons, and said Lease shall be liable for any loss in rent for the balance of the term or renewal term. Section 17.2 Landlord's Remedies. Should a default occur under this Lease, Landlord may pursue any or all of the following: (a) Landlord, in addition to other rights or remedies it may have, shall have the right, by written notice to Tenant, to declare this Lease terminated and the term ended, in which event, this Lease and the term hereof shall expire, cease and terminate with the same force and effect as though the date set forth in the notice of termination were the date originally set forth herein and fixed for the expiration of the term, and Tenant shall vacate and surrender the Premises but shall remain liable for ail obligations arising during the balance of the stated term as if this Lease had remained in full force and effect. (b) Landlord shall have the right to bring a special proceeding to recover possession from Tenant holding over and/or Landlord may, in any such events, with notice, re-enter the Premises and dispossess, by summary proceedings or otherwise, Tenant and the legal representatives of Tenant or other occupant(s) of the Premises and remove their effects and Tenant shall have no further elairn or right hereunder. To the extent permitted by law, Tenant waives any right of redemption. No re-entry or commencement of any action for re-entry shall be construed 12 08/14/2003 10:01 ?175665799 B&B HOCKEY PAGE as an election to terminate this Lease and shall not absolve or release Tenant from any of its obligations for the remainder of the term of this Lease. In the evextt of re-el£uy, Landlord may remove all persons and property from the Premises and such property may be removed and stored In a public warehouse or elsewhere at thc expense and risk of Tenarn, with notice or resort to lega~ process and without Landlord being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby. Tenant hereby waives all right to trial by jury in any claim, action or demand asserted' against Tenant by Landlord by reason of this Lease. ( c ) Should Landlord elects to enter, as herein provided, or should it take possession pursuant to legal proceeding or pursuant to any notice provided for by law, it may either terminate this Lease or it may from time to time, without terminating this Lease, make such alterations and repairs as may be necessary in order to relet Premises, and relet said Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such re-letting al rentals all rentals and other sums received by Landlord from such relctting shall be applied, first, to the payment of any i ndebxedness other then rent due hereunder from Tenant's Landlord', second, to the payment of any costs and expenses of such re-letting, including reasonable brokerage fccs and attorney's fees and thc costs of any alterations and repairs; and the residue, if any, shall be applied in payment of rent and other charges due and unpaid hereunder. If such rentals and other sums received from such re-letting during any month be less then that to be paid during that month by Tenant. Tenant shall pay such deficiency to Landlord; if such rentals and the sums shall be more, Tenant shall have no fight to, and shall receive no credit for, excess. Such deficiency shall be calculated and paid monthly. No re-entry of taking possession of said Premises by Landlord shall be construed as an election on its part to terminate this Lease notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such rclctting without tcrminadon, Landlord may ax any tirac elect to terminate this Lease for such previous breach, in addition to any other remedies it may have, it may recover from Tenant all dainnges it may incur by reason of such breach, including the cost of recovering the Premises, reasonable attorney's fees, and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in the Lease for the reminder of thc stated term over the then reasonable rental value of the Premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord. The failure of Landlord to relet the Premises shall not affect Tenant's liability. The terms "entry" and '~'e-cnn3," arc not limited to their technical meanings. Nothing contained in this Lease shall be construed to limit or prejudice thc right of Landlord to prove for and obtain as damages by reason of the termination of this Lease or re-entry of the Premises for the default of the Tenant under this Lease an amount to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount shall be greater than any of the sums referred to in this Section 17.2. Section 17.3. Additional Remedies. If Tenant shall be in default Landlord shall have the option, but not the obligation, upon three-(3) days written notice to Tenant, 13 AUG-14-2003 11:02 to cure the act or failure constituting said default for the account of and at the expense of Tenant. Landlord's cure or attempt to cure any act or failure constituting the default by Tenant shall not result in a waiver of such default or release of Tenant with respect to such default. Tenant agrees to pay Landlord interest, in accordance with Section 3.2 hereof, on all sums expended by Landlord pursuant to this Section 17.3 from the date of such expenditure, and Tenant agrees to pay the costs incurred by Landlord pursuant to this Section 17.3 to Landlord upon demand. All fights and remedies of the Landlord : herein enumerated shall be cumulative, and none shall exclude any other remedies allowed at law or in equity. Section 17.4. Bankruotev. Neither Tenant's interest in this Lease shall pass to any trustee or receiver or assignee for the benefit of creditors or otherwise by operation of law, except as may be specifically be provided pursuant to the Bankruptcy Code (11 USC Section 101), as the same may be amended from time to time. (a) Rights and Obligations under the Bankruptcy Code. (1) It is understood and agreed that this Lease is a lease of real property in a shopping center as such lease is described in Section 365 of the Bankruptcy Code, as the same may be amended from time to time. (2) upon filing of a petition by or against Tenant under the Bankruptcy Code, Tenant, as debtor and as debtor-in-possession, and any trustee who may be appointed with respect to the assets of or estate in bankruptcy of Tenant, agree to pay monthly in advance on the first day of each month, as reasonable compensation for the use and occupancy of the Premises, an amount equal to all Minimum Rent, Expenses and other charges otherwise due pursuant to this Lease.(3) Included within and in addition to any other conditions or obligations imposed upon Tenant or its successor in the event of the assumption and/or assignment of this Lease are the following: (I) the cure of any monetary defaults and reimbursement of pecuniary loss within not more than thh'ty (30) days of assumption and/or assignment;(II) the deposit of an additional sum equal to not less than three (3) months' Minimum Rent and additional rent to be held pursuant to the terms of Section 3.3.of this Lease; (III) the use of the Premises as set forth in Section 5.1 of this Lease; (IV) the prior written consent of any mortgagee to which this Lease has been assigned as collateral security. ~- ARTICLE XVIII. ItOLDING OVER Section 18.1. Surrender and Holdin~ Over. Tenant shall deliver upon and surrender to Landlord possession of the Premises and upon the expiration of the Lease, or its termination in any way, in as good condition and repair as the same shall be at the commencement of said term (damage by fire and ordinary wear and decay only excepted), and shall deliver the keys at the office Landlord or Landlord's agent. Should Tenant or any party claiming under Tenant remains in possession of the Premises, or any part there of, after expiration or any termination of this Lease, no Tenancy or interest in the Premises shall result therefrom but such holding over shall be an unlawful detainer and all such parties shall be subject to immediate eviction and removal, and Tenant shall upon demand pay to Landlord, as Liquidated damages, a sum equal to double the Minimum Rent as specified herein for any period during which Tenant shall hold thc Premises after the stipulated term of this Lease may have expired of terminated. 14 as an election to terminate this Lease and shall not absolve or release Tenant from any of its obligations for the remainder of the term of this Lease. In the event of re-entry, Landlord may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the expense and risk of Tenant, with notice or resort to legal process and without Landlord being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby. Tenant hereby waives all right to trial by jury in any claim, action or demand asserted.. against Tenant by Landlord by reason of this Lease. ( e ) Should Landlord elects to re- enter, as herein provided, or should it take possession pursuant to legal proceeding or pursuant to any notice provided for by law, it may either terminate this Lease or it may from time to time, without terminating this Lease, make such alterations and repairs as may be necessary in order to relet Premises, and relet said Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such re*letting al rentals all rentals and other sums received by Landlord from such reletting shall be applied, first, to the payment of any indebtedness other then rent due hereunder from Tenant's Landlord; second, to the payment of any costs and expenses of such re-letting, including reasonable brokerage fees and attorney's fees and the costs of any alterations and repairs; and the residue, if any, shall be applied in payment of rent and other charges due and unpaid hereunder. If such rentals and other sums received from such re-letting during any month be less then that to be paid during that month by Tenant. Tenant shall pay such deficiency to Landlord; if such rentals and the sums shall be more, Tenant shall have no right to, and shall receive no credit for, excess. Such deficiency shall be calculated and paid monthly. No re-entry of taking possession of said Premises by Landlord shall be construed as an election on its part to terminate this Lease notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time elect to terminate this Lease for such previous breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Premises, reasonable attorney's fees, and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in the Lease for the reminder of the stated term over the then reasonable rental value of the Premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord. The failure of Landlord to relet the Premises shall not affect Tenant's liability. The terms "entry" and "re-entry" are not limited to their technical meanings. Nothing contained in this Lease shall be construed to limit or prejudice the right of Landlord to prove for and obtain as damages by reason of the termination of this Lease or re-entry oftbe Premises for the default of the Tenant under this Lease an amount to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount shall be greater than any of the sums referred to in this Section 17.2. Section 17.3. Additional Remedies. If Tenant shall be in default Landlord shall have the option, but not the obligation, upon three-(3) days written notice to Tenant, 13 ARTICLE XIX. MISCELLANEOUS Section 19.1 Subordination of Tenant's Interest. Tenant shall subordinate Tenant's Interest in the Premises to the lien, operation and effect of mortgages as requested by Landlord from time to time, and, at Landlord's expense, will promptly execute and deliver such agreement or agreements as may reasonably required by any mortgage or trustee. Section 19.2. Release of Liability. Landlord and Tenant hereby release the other from any and all liability or responsibility to the other or anyone claiming through or under them by way of subrogation of otherwise for any loss or damage to property caused by fire or any of the extended coverage or supplementary contract casualties, even if such fire or other casualty shall have been caused by the fault or negligence of the other party, or any one for whom such party may be responsible, provided, however, that this release shall be applicable and in force and effect only with respect to loss or damage occurring during such time as the releasor's policies shall contain a clause or endorsement to the effect that any such release shall not adversely affect or impair said policies or prejudice the right of the releasor to recover thereunder. Each party shall obtain insurance policies containing such waiver of subrogation clause(s) for all insurance policies which relate to the Premises or use of the Premises. Section 19.3. Right of Recovery A~ainst Landlord. Tenant agrees that in the event the Landlord is in default under this Lease, any mortgagee or trustee under a deed of trust of Landlord's interest in the Premises, and the landlord under any ground or underlying lease which includes the Premises, shall be permitted ( but not required) to enter the Premises during normal business hours for the.purpose of correcting or remedying such default, and Tenant agrees to accept performance by such mortgagee, trustee, or ground or underlying landlord in lieu of performance by the Landlord. Tenant further agrees that, from and after specific written request by Landlord to do so (which request sets forth the name and address of any mortgagee, trustee or ground or underlying landlord), Tenant will, simultaneously with the giving of any notice to landlord as required or permitted hereunder, give a copy of such notice to such mortgagee, trustee or ground or underlying landlord and that any such notice fo Landlord shall not be effective unless Tenant has simultaneously given notice to such mortgagee, trustee or ground or underlying landlord. Section 19.4 Amendments to Lease. Tenant, at Landlord's expense, agrees to consent to, and to execute and deliver promptly upon each request from Landlord, such reasonable amendments to this Lease as may be requested by any bank, savings and loan association, insurance company or other institutional lender providing bona fide mortgage loans to Landlord in connection with the Center or by any ground landlord ( if any) of the land appurtenant thereto, provided, however, that such amendments do not impair or otherwise materially affect Tenant's leasehold interest n the Premises, and provided further that such amendments do not reduce, increase or change the term of this Lease, nor affect the rate or cost of rental and other obligations of Tenant hereunder, not create any material obligations, liabilities, duties or responsibilities of any nature whatsoever upon the Tenant greater than those to which Tenant is herein committed. 15 Section 19.5. Additional Documents. Tenant shall, at the request of Landlord and at Landlord's sole cost and expense, execute such additional instruments that Landlord or Landlord's mortgagee may request from time to time or as may be required or convenient hereunder, not inconsistent herewith. Section 19.6. Access bv Landlord. Landlord covenants and warrants that, upon the Term of the Lease commencing, Landlord shall have full Term hereof; that Landlord will be lawfully seized of the entire Premises and will have good title thereto; and that, at ail times when Tenant is not in default under the terms and during thc term of this Lease, Tenant's quiet and peaceable enjoyment the Premises shall not be disturbed or interfered with by anyone. Landlord, in person or by agent, shall be permitted to enter upon the Premises at reasonable times to examine the same or to make such as are required hereunder. Section 19.7. Successors and Assians. This Lease shall inure to the benefit of and shail bind the respective successors and assigns oftbe parties to the extent that the parties' fights hereunder may succeed and be assigned according to the terms hereof. Section 19.8. Non-Waiver. No waiver of any condition or legai right or remedy shall be implied by the failure of Landlord to declare a forfeiture, or for any other reason, and no waiver of any condition or covenant shall be vaiid unless it is in writing signed by the Landlord. No waiver by Landlord in respect to one tenant of the building in which the Premises are located shail constitute a waiver in favor of any other tenant, nor shail the waiver of a breach of any condition be claimed or pleased to excuse a future breach of the same condition or covenant. The mention in this Lease of any specific right of remedy shail not preclude Landlord from exercising any other or from having any other remedy or from maintaining any action to which it may be otherwise entitled either at law or in equity; and for the purpose of any suit by Landlord brought or based on this Lease, this Lease shall be construed to be divisible contract, to the end that successive actions may be maintained as successive periodic sums shall mature under this Lease, and it is further agreed that failure to include in any suit or action any sum or sums then matured shall not be a bar to the maintenance of any suit or action for the recovering of said sum or sums so omitted. Section 19.9. Notice. If, at any time after the execution of this Lease, it shall become necessary or convenient for one of the parties hereto serve any notice, demand or communication upon the other party, such notice, demand or communication shall be in writing signed by the parties serving the same. Notice to Landlord Notice to Tenant Lady Remlyn, Inc. P.O. Box 1123 Camp Hill, PA 17011 16 Section 19.10. LiabilBv of Landlord. Neither Landlord, Landlord's beneficiaries, any persons or entities comprising Landlord, nor any successor in interest to Landlord (or to such persons or entities) shall have any personal liability for any of this Lease applicable to Landlord. Tenant shall look solely to the equity of the then owner of the Leased Premises in such property for the satisfaction of any remedies of the Tenant in the event of a breach by Landlord of any of its obligations hereunder provided that Landlord maintains liability insurance as set forth in Section 9.3. Section 19.11. Comoliance with the Laws of Pennsylvania. This agreement may be signed in any number of counterparts and shall be construed under the laws of the Commonwealth of Pennsylvania. Section 19.12. Waiver of Counterclaims. Tenant shall not impose any counterclaim or counterclaims in a summary proceeding or other action based on termination or holdover. Section 19.13. Waiver of Jury Trial. Landlord and Tenant hereby waive trial by jury in any actions, proceeding or counterclaim brought by either of the parties hereto against the other on, or in respect of, any matter whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant hereunder, Tenant's use or occupancy of the Leased Premises and/or any claim of injury or damage. Section 19.14. Entire A~reement. This Agreement represents the entire agreement between the parties hereto. There are no agreements, negotiations or representations, oral or written, other than as set forth herein. IN WITNESS WHEREOF, the Tenant has caused the Lease to be signed and Landlord has caused this Lease to be signed by its duly authorized officer or agent and has affixed its seal the day and year first above written. ATTEST: LANDLORD: t.) Secretary (SEAL) 17 REPAIR AND COMMON AREA MAINTENANCE COSTS Common area maintenance costs shall include all costs and expanses of every kind and nature as may be paid or incurred in operating, policing, protecting, insuring, managing, equipping, lighting, repairing, replacing and maintaining the common areas and (facilities) of the Center including but not limited to, the cost and expense of: ( 1 )operating, maintaining, repairing, replacing, lighting, cleaning, sweeping, painting, and resurfacing, of the common areas and facilities, including, but not limited to: parking lots, curbs, gutters, sidewalks, paving, vehicle area lighting facilities, lighting and sound facilities, storm and sanitary drainage systems, utility sprinkler and security alarm system, ( Center signs on and offthe Center site, retaining walls, curbs, gutters, fences, sidewalks, canopies, steps and ramps in the common areas, exclusive of casualty loss replacement covered by insurance; ( 2 )reserve for resurfacing the parking lot, curbs, gutters and sidewalks calculated on a ten (10) year life; ( 3 )gardening, landscaping, and maintenance of grass, trees and shrubbery; ( 4 )all premiums for all insurance maintained in connection with the Center, including, without limitation:the insurance referred to in Article IX hereof; worker's compensation; sign insurance; and (if available) loss of rent insurance for up to a twelve (12) month period; ( 5 )security; ( 6 )personal property taxes on equipment and systems in, pertaining to, or used in maintaining and operating the common areas and outdoor areas; ( 7 )utility charges and other costs of lighting the common areas, the vehicle areas, center signs and other like facilities; ( 8 )vehicle line painting, and removal of snow and ice; (9) equipment, machinery and supplies in the operation and maintenance of the common areas ( including cleaning and snow removal equipment ) and Center si~tms fixtures, furnishings ( including the cost of inspection and depreciation thereof unless the original cost was included in the common area maintenance costs ); 10) power and fuel for operating common area equipment and systems, and for operating vehicles and equipment used for cleaning, maintenance and snow removal; (11) salaries of personnel directly engaged in operating, cleaning and maintaining the common areas ( including security personnel and parking attendants ), and ail related payroll charges, benefits and taxes; and 18 ( 12 ) any management fees paid for the management of the Center, not in excess of amounts paid for comparable Centers in the metropolitan area wherein the Center is located. (13) service contracts for the heating and air conditioning units of the Premises. (14) water and sewer service for the Premises. 19 EXHIBIT "B" 88/14/2883 18:01 7175666799 B&B HOCKEY ...... PAGE. _ 82 Items stolen from B & B Hockey, 4401 Carlisle Pike, Suite F, Camp Hill, PA 17011 Skate sharpening machine with repair bench and tools $13,000 Cash register 928 32" Television 700 Gateway computer system 2,400 Mini-refrigerator 75 Microwave oven 55 2 Artificial trees 120 11 clothing racks 6557.00 ea. 627 Visor rack 195 Display counter 800 Slatwall and accessories 2,000 4 hockey stick racks ~$40.00 ea. 160 3 arm chairs~$85.00 255 Dressing room mirror and curtain 60 Hockey sticks 3,000 Compressor 250 Vacuum cleaner and wet vac 200 Credit card machine 300 Credit card machine stand 35 Office desk 225 Legal-size filing cabinet 125 Display stand, racks, hooks, etc. 425 Stereo system 275 Shipping supplies 150 Merchandise bas 150 Small table, nightstand 90 Office supplies 200 WSI hockey jocs 100 ~$19.50 ea. 1,950 l-Tech goalie throat collars 6 ea. 624.00 ea. 144 Wall mural 500 AUG-14-2003 11:02 7175666799 97Z P.02 08/i4/2003 ZB:O~ ?~755GG799 ~&~ HOCKEY _ P~GE This list represents the items stolen to our recollection but is not to be considered complete. TOTAL: $29,394 AUG-i4-2003 ll:OB ?175C:~:~799 ~7% P.03 EXHIBIT "C" 8@/0g/2003~ i1:35 71756~$798 B&B HOCKEY PAGE 02 ,,.,r~e to dc~'~t ~b¢ pz~mt~r~. I ~ ~sking for a pa~:m of ~2,DOO f~ Please make a~ang~cnt~ ,a';rh me co g~ access to the prowesses before Fqaday ~t 15`1', 2003 A tier AUG-08-2003 12:38 7175556799 98% P.82 CERTIFICATE OF SERVICE I, Melanie L. Kirk, Legal Assistant with the law firm of Cunningham & Chemicoff, P,C., hereby certify that he served a true and correct copy of the Complaint was served upon the following via first Class, Certified, Restricted Delivery Mail, postage prepaid, on August 14, 2003: Lady Remlyn, Inc. P.O. Box 1123 Camp Hill, PA 17011 Date: Leslie Jacobson, Esquire 8150 Derry Street, Suite A Harrisburg PA 17111-5260 Melanie L. Kirk 15 4 DAVID FOORE t/d~/a B&B HOCKEY and LISA FOORE, Plaintiffs V. LADY REMLYN, 1NC. Defendant IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Equity CaseNo. t~ -, ORDER AND NOW, this / '/~ day of August, 2003, upon consideration of the verified Complaint in Equity in this action and the accompanying Petition for Preliminary Injunctive Relief, it is hereby ORDERED that Defendant, its agents, officers, and attorneys, are: (1) Immediately ordered to cease and desist any and all efforts to market and/or sell the inventory, equipment and assets that were located within the building designated as Suite F, St. John's Place, located at 4401 Carlisle Pike, Hampton Township, Cumberland County, Pennsylvania containing approximately 1,475 square feet of retail space as of June 1, 2003; (2) Directed to show cause before this Court on the 20 ' day of /~eJ/~ 2003, at la: ~o tt.m. in Courtroom number ~ Cumberland County Courthouse, Carlisle, Pennsylvania, why a preliminary injunction should not be continued providing the relief requested by the Plaintiffs. Plaintiff shall cause copies of this Order and Rule to Show Cause, the Complaint in Equity and the Petition for Injunctive Relief with its accompanying papers to be served upon all parties in interest at least 3 days Crom the date of the hearing. Date: BY THE COURT: DAVID FOORE t/d/b/a B&B HOCKEY and LISA FOORE, Plaintiffs V. LADY REMLYN, 1NC. Defendant : IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Equity Case No. PETITION FOR PRELIMINARY INJUNCTION The Petition of David Foore, trading and doing business as B&B Hockey, and Lisa Foore, by and through their counsel, Cunningham & Chernicoff, P.C., for a Preliminary Injunction, without hearing, pending a hearing to be held within five (5) days, enjoining the Defendant from marketing or selling any of the inventory, equipment and assets located upon the Leased Premises or from otherwise interfering with the Plaintiff's exclusive right to possession of such inventory, equipment and assets until further order of this Court is as follows: This Petition is respectfully submitted because, as more fully set forth in Plaintiff's Complaint: 1. Plaintiff, David Foore, ("Plaintiff") trading and doing business as B&B Hockey, is a sole proprietorship having a place of business located at 111 West Main Street, Hummelstown, Pennsylvania, 17036 ("B&B Hockey East"). B&B Hockey is in the business of retail sale of hockey and skating equipment. Pennsylvania. 3. Plaintiff, Lisa Foore, is an adult individual currently residing in Lebanon County, Defendant, Lady Remlyn, Inc. ("Defendant") is a Pennsylvania corporation having a mailing address at P.O. Box 1123, Camp Hill, Pennsylvania, 17011. 4. The parties to this action entered into a written Lease Agreement dated March 12, 2002 (the "Lease Agreement") whereby Plaintiff leased 1,475 square feet of retail space within the building designated as Suite F, St. John's Place, located at 4401 Carlisle Pike, Hampton Township, Cumberland County, Pennsylvania (the "Leased Premises" or "B&B Hockey West"). A true and correct copy of the Lease Agreement is attached hereto as Exhibit "A" and incorporated herein by reference. 5. Plaintiffs have brought a Complaint and seek this Preliminary Injunction to enjoin the Defendant's illegal and unlawful action in employing self-help and breaches and violations of the Lease Agreement and to prevent irreparable harm to the Plaintiffs. 6. On or about June 1,2003, without prior warning, Defendant changed the locks to the Leased Premises, took possession of all of the Plaintiff's inventory, equipment, and assets located on the Leased Premises; moved all of the inventory, equipment, and assets to an undisclosed location without notice to or the consent of Plaintiffs; and have refused to allow the Plaintiffs to re-enter the Leased Premises. 2 7. After Plaintiff and Defendant entered into the Lease Agreement, Plaintiff began experiencing a cash flow shortage as a direct result of the unexpected closure ora local skating rink. 8. After attempting to negotiate a rent reduction agreement with Defendant in March, 2003, Plaintiff determined that it could not operate profitably at the Leased Premises. Plaintiff immediately notified Defendant of its decision to close B&B Hockey West and to relocate all inventory, equipment and assets to B&B Hockey East. A notice advising all customers of the decision to move to B&B Hockey East was posted conspicuously at the Leased Premises on or about March 15, 2003. 9. Pursuant to the Lease Agreement, non-payment of rent does not constitute a default under the Lease Agreement unless such rent remains unpaid for a period of five (5) days after the date it is due. 10. Pursuant to the Lease Agreement, monthly rent in the amount of $1,720.83 is due on the first day of each month. 11. All rent due pursuant to the Lease Agreement was paid by Plaintiff to Defendant through May 31,2003. Accordingly, Plaintiff was not in default under the Lease Agreement for non- payment of rent as of the date that Defendant took the unilateral action referenced in Paragraph 5 above. 12. The terms of the Lease Agreement do not waive the necessity of the Defendant to demand payment of rent or the statutory provisions of a notice to quit. 13. No demand for payment of rent was made by Defendant before it took the unilateral action referenced in Paragraph 6 above. 14. No notice to quit or notice of termination of the Lease Agreement has ever been made by Defendant to Plaintiff as is required by the Lease Agreement and by statute. 15. On June 23, 2003, the undersigned counsel contacted counsel for Defendant by telephone to negotiate the return of Plaintiff's inventory, assets and equipment. During the Jtme 23, 2003, telephone conference between counsel, an agreement resolving all matters between Plaintiff and Defendant was reached. This agreement included the return of all of Plaintiff's inventory, equipment, and assets. 16. Shortly thereafter, and pursuant to the agreement referenced in Paragraph 15 above, Plaintiff contacted Defendant to schedule a time during which Plaintiff could retrieve all of its inventory, equipment, and assets. At that time, Defendant informed Plaintiff that it would not be returning any of Plaintiff's inventory, equipment, or assets, notwithstanding the prior agreement to the contrary. 17. Contemporaneously with the negotiations referenced above, Defendant was engaged in the process of removing all of Plaintiff's inventory, equipment and assets. 18. Plaintiff believes, and therefore avers, that Defendant never had any intention of honoring the terms of the agreement roached by and between the parties as referenced in Paragraph 15 above. 4 19. On or about August 8, 2003, Defendant sent correspondence to Plaintiff attempting to distrain the Plaintiff's inventory, equipment mad assets located upon the Leased Premises. The August 8, 2003 correspondence requests payment in the amount of $2,000.00 and includes a statement that all inventory, equipment and assets will be disposed of on Friday, August 15, 2003, unless arrangements to retrieve same were made by Plaintiff prior to such date. The August 8, 2003 correspondence also includes a statement that the Defendant would not return a certain piece of equipment referred to as a "skate sharpener" and all related equipment. A true and correct copy of the August 8, 2003 letter is attached hereto and incorporated herein as Exhibit "B". 20. The skate sharpener and related equipment referenced above has a fair market value of approximately $12,000.00 and is not owned by Plaintiffs. To the contrary, the skate sharpener is the property of Fulton Bank and is located on the Leased Premises pursuant to a Lease Agreement by and between Plaintiff, as Lessee and Fulton Bank, as Lessor (the "Skate Sharpener Lease"). 21. Fulton Bank also possesses a valid, perfected security interest and lien against all of the Plaintiff's inventory, equipment and assets previously located on the Leased Premises. 22. Plaintiffhas been advised that Defendant contacted Fulton Bank and advised Fulton Bank that Plaintiffs had abandoned the Leased Premises and all of the inventory, equipment, and assets located therein. 5 23. As set forth above, Plaintiff did not abandon the Leased Premises or any of the inventory, equipment and assets located therein. To the contrary, Defendant has wrongfully denied Plaintiff access to the Leased Premises to recover the inventory, equipment and other assets. 24. Based upon the Defendant's misrepresentations to Fulton Bank, Fulton Bank has released its secured interest in and lien against the skate sharpener and related equipment. Fulton Bank may have also released its interest in the inventory, assets and other equipment previously located upon the Leased Premises. 25. Fulton Bank has also indicated that it will seek to recover from Plaintiffs the sums due under the Skate Sharpener Lease and other loan facility secured by the inventory, assets and equipment located at the Leased Premises. 26. Defendant's unlawful self-help actions have deprived Plaintiffs of their lawful right to use and possession of the inventory, equipment and assets. Plaintiffs has been unable to sell the inventory previously located upon the Leased Premises. Plaintiffs have also been unable to utilize the equipment and other assets to its detriment. 27. A landlord who desires to repossess leased premises from a tenant may not undertake self-help eviction or dispossession of a tenant since the landlord's only remedy to evict a tenant is to bring an action under the Landlord/Tenant Act or an action in ejectment. Lenair v. Campbell, 31 D&C 3d 237 (1984). 28. The law does not favor forfeiture, and a forfeiture of a leasehold must be strictly construed. The provisions of a Lease will be construed, if possible, to avoid a forfeiture. Elizabethtown Lodge, Loyal Order of Moose v. Ellis, 391 Pa. 19, 137 A.2d 286 (1958), and Northway Villaee No. 3~ Inc. v. Northwav Properties, Inc., 430 Pa. 499, 244 A.2d 47 (1968). 29. The party seeking the benefit of a forfeiture for the breach of a lease has the burden of showing that the breach is so substantial as to justify regarding the whole transaction as ended. Easton Theatres, Inc. v. Wells, Fargo, Land & Mortgage Co., 265 Pa. Super. 334, 401 A.2d 1333 (1979), appeal dismissed, 498 Pa. 557, 449 A.2d 1372. 30. The test for determining the materiality of a breach of the lease contract includes consideration of the following elements: (a) The extent to which the injured party will obtain the substantial benefit which he could reasonably have anticipated; (b) The extent to which the injured party may be adequately compensated for damages for lack of complete performance; (c) The extent to which the party failing to perform has already partly performed or made preparation for performance; (d) The greater or lesser hardship on the party failing to perform in terminating the contract; and 7 (e) The willful neglect or innocent behavior of the party failing to perform. Blue Ridge Metal Manufacturing Co. v. Proctor, 327 Pa. 424, 194 A. 559 (1937); and Cimina v. Bronich~ 349 Pa. Super. 399, 503 A.2d 427 (1985). 31. A landlord is not entitled to a forfeiture Where a tenant is late in paying rent where other similar delays were not complained of. Moreover, where a tenant fails to make payment of rent under the terms of the Lease, which non-payment gives the landlord the fight to declare a forfeiture for this reason, if, before forfeiture is declared by the landlord, the rent due is paid, the right to take advantage of the default is lost as a forfeiture has passed. Pleasure Harbor Marinm Inc. v. Boyle, 282 Pa. Super. 8, 422 A.2d 649 (1980). 32. Unless a demand for rent is expressly waived by the terms of the Lease, which is not the case in this matter, a demand by the landlord is absolutely essential to work a forfeiture for non- payment of rent. Where there is a condition of reentry on non-payment of rent, to entitle the landlord to reenter, the landlord must demand the precise rent due on the day on which becomes due at the most notorious place on the land, and the demand must actually be made on the land, although there is no person on the land ready to pay the rent. Elizabethtown Lodge, Loyal Order of Moose v. Ellis, 391 Pa. 19, 137 A.2d 286 (1958). 33. The Defendant never forwarded to the Plaintiff a Notice to Quit for non-payment of rent in accordance with the Pennsylvania Landlord/Tenant Act. 68 P.S. §250.101 et seq. 8 34. The Plaintiff will suffer immediate and irreparable harm if an injunction is not granted. Defendant's continuing conduct deprives the Plaintiff of property rights to which it is entitled by operation of law and which are not redressable by damages. Unless enjoined, the actions of the Defendant will result in a further wasting, diminution and conversion of the assets of the Plaintiff by virtue of the Defendant's continued unlawful self-help action in connection with the Leased Premises and the inventory, equipment, and assets contained therein. Moreover, by causing a breach of the Plaintiffs obligations to third parties, Defendant has placed Plaintiff in default under the Skate Sharpener Lease and other loan facilities with Fulton Bank, which default unless promptly cured will result in civil actions for monetary claims which in turn will result in the loss of business opportunities and the cessation of Plaintiffs business to the irreparable harm of the Plaintiff. 35. Unless Defendant is enjoined preliminarily, the status quo will not be preserved and the Plaintiffs business will be lost. 36. The Plaintiff has no adequate remedy at law to redress and current and impending harm from Defendant's continued conduct. The destruction of the Plaintiffs business by the Defendant's continued actions is not redressable by monetary damages. 37. Defendant will not be substantially harmed if the special relief prayed for is granted, pending a final determination of the matter on the merits. 38. There is a substantial likelihood that Plaintiff will ultimately be successful on the merits. See, Pa. R.C.P.D.J. No. 518. 39. The Defendant, on June 1, 2003, without authority of law, entered upon the leased premises and has denied Plaintiff access thereto since that time. 40. The Defendant has advised Plaintiff that it intends to continue in such unlawful possession, and further proposes and intends to sell all of the Plaintiffs inventory, equipment, and assets located within the Leased Premises, without first having made or paid to the Plaintiff any compensation therefor, or having given or offered any security, and before Plaintiffs damages have been assessed. 41. Defendant has no warrant or authority for taking possession of the Leased Premises, even upon making compensation therefor. If Defendant is allowed to proceed with execution of its aforesaid purpose, Plaintiff will suffer great and irreparable wrong and injury. 42. The Defendant will not suffer any appreciable injury if the requested preliminary injunction is issued because the status quo between the parties will be restored to where it was before Defendant's wrongful conduct began. Defendant will merely be restrained from taking advantage of its wrongful acts. 43. Defendant will remain free to pursue its legal rights in a lawful manner. 44. The Plaintiff is likely to succeed on the merits of its claims. The obligation of the Defendant to pursue its remedies pursuant to the statutory law of the Commonwealth of Pennsylvania is clear. 10 45. The Defendant, in taking the action it has, has converted Plaintiffs assets to their own use, and Plaintiffs in proving such action is also equally clear. 46. These rights are enforceable in equity, and Plaintiff will be entitled, upon a final hearing, to a permanent injunction against the Defendant's actions of self-help and conversion of the Plaintiffs' assets. 47. Plaintiff should not be required to post a bond in this matter as the filing of the Complaint in Equity and accompanying Petition for Preliminary Injunction would not be necessary but for Defendant's illegal and wrongful self-help actions. 48. Plaintiff attempted to resolve these matters with counsel for Defendant on June 23, 2003. Plaintiffs' counsel was advised that an agreement had been reached that included the return of all of the Plaintiffs' inventory, equipment, and assets without further obligation of Plaintiffs to Defendant.. Such agreement was not honored by Defendant. WHEREFORE, Petitioner/Plaintiff, David Foore, t/d/b/a B & B Hockey, and Lisa Foore, his wife, prays your Honorable Court: (a) Pursuant to Pa. R.C.P. No. 1531(a) issue a preliminary or special injunction prior to written notice to the Defendant enjoining the Defendant from marketing or selling any of the inventory, equipment and assets, and to do so without the necessity of posting bond, and upon heating, grant a permanent injunction 11 enjoining the Defendant from denying Plaintiff free and peaceful ingress to and egress from the Leased Premises for the limited purpose of retrieving all of the inventory, equipment, and assets located upon the Leased Premisses as of June 1, 2003, until further Order of this Court. (b) Following hearing, award Plaintiff compensatory damages in an appropriate amount as determined by this Honorable Court;. (c) Following hearing, award punitive damages to the Plaintiff in an appropriate amount as determined by this Honorable Court; (d) Enter judgment for the Plaintiff herein and against the Defendant. (e) Grant such other relief as is proper and just. By: Respectfully submitted, CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street P.O. Box 60457 Harrisburg, PA 17110 (717)238-6570 08/14/03 112:46 FAX 717 737 0293 AUG-l~-2003 12:47 SUN ~OTORCARS 003 VERIFICATION i, David Foore t/b/d/a B&B Hockey, verify thattho statements made in thc foregoing Petition for Pr¢liminaw Injunction are true and correct to the begt of my knowledge, information, and belief. I understond that false statements herein made are subject to the penalties of 1 $ Pa. C.S.A. Section 4904, relating to unswom falsification to authorities. Date: ¢ l~t ~ 0'--3 DAVID FOORB AUG-id-2003 i3:03 717 737 0293 TOTAL P,~3 P.03 EXHIBIT"A" Lease A~reement Dated /.~ ~O/o.t./~ /V/o..,t_~ ,9o0', Between Lady Remlyn, INC. and This Submission of this Lease to Tenants shall not be construed as an offer, nor shall Tenant have any rights with respect thereto, unless and until Landlord shall execute a copy of this Lease and deliver the same to Tenant. Lease THIS LEASE MADE AND EXECUTED, as of the /2. day of g ,.2oo2 by and between Lady Remlyn, a Pennsylvania corporation, with a mailing address of P.O. Box 1123, Camp Hill, Pennsylvania 17001 (herein called "Landlord"), and Dave Foore, and Lisa Foore, t/clPo/a B & B Hockey. Landlord does hereby lease unto Tenant the "Premises" at the "Rent" for the "Term" for the "Permitted Use" upon and under the following terms and conditions: ARTICLE I. PEMISES Section 1.1 Demise. Landlord hereby leases to the Tenant and Tenant hereby leases from the Landlord fourteen hundred and seventy five feet (1475) of retail space within the building ( the "Premises") designated as Suite F, located at St. John's Place, a retail shopping center, owed by the Landlord,and located at 4401 Carlisle Pike, Hampden Township, Cumberland County Pennsylvania. The location of the Premises within the center is shown on a drawing attached hereto as Exhibit "A". Section 1.2 Mechanics Liens. Landlord is delivering the Premises in "as in" condition. Tenant has inspected the Premises, warrants that they understand the existing condition of the Premises and any and ail additional interior work shail be the responsibility of the Tenant at Tenants sole cost. Tenant at ail times shall not permit a mechanic's lien or other similar lien to be placed on the Premises, Tenant's fixtures, equipment or the Center. Section 1.3 Restrictions on Alterations. Tenant will not make any aiterations, renovations, improvements or other installations in, on or at the Premises or any part thereof (including, without limitation, any alterations, of'the store fxont or signs, structural alterations, or any cutting or drilling into any part of the Premises or any securing of any fixture, apparatus, or equipment of any kind to any part of the Premises) unless and until' Tenant shall have caused plans and specification therefor to have been prepared, at Tenant's expense, by a duly qualified person and shall nhave obtained Landlord's approval thereof, which approval shall not be withheld unreasonably. If such approval is granted, Tenant shail cause the work described in such plans and specification to be performed, at its expense, promptly, efficiently, completely and in a good and workmanlike manner by duly qualified or licensed persons or entities, using fn'st grade materials. All such work shall comply with ail applicable governmental codes, rules, regulations and ordinances. Section 1.4 Imorovements and Eauioment. Except as otherwise hereinafter provided, ail alterations, improvements, furnishings and other equipment installed in the Premises by Tenant and paid for by it shall remain the property of Tenant and may be removed by Tenant upon the termination of this Lease, provided (a) that any of such 2 items as are affixed to the Premises and required severance shall be deemed the property of Landlord and may be removed only if Tenant shall repair any damage mused by such removal and (b) that Tenant shall have fully performed all of the covenants and agreements to be performed by it under the provisions of their Lease. If the Tenant fails to remove such items from the Premises as of the date of termination of this Lease, all such alterations, decorations, additions and improvements shall become the property of the Landlord unless Landlord elects to repair their removal in which case Tenant shall. promptly remove same and repair and restore the Premises to its prior conditions, reasonable wear and tear excepted. Upon such termination, the parties shall be released from any further liability to each other and this lease shall be null and void. ARTICLE II. TERM Section 2.1.Term. The term of this lease shall be for a demised term consisting of 30 months, commencing on (the "Commencement Date") June 1st 2002 and terminafmg on Nov. 31 st, 2005 without the necessary of any notice from either Landlord or Tenant to terminate the same. Tenant hereby agree that if it fails to surrender the Premises at the end of Term, Tenant will be liable to Landlord for any and all damages that Landlord shall suffer by reason thereof, and Tenant will indemnify Landlord against all claims and demands made by any succeeding tenants against Landlord, founded upon delay by Landlord in delivering possession of the Premises to such succeeding tenant. For the Period of ninety (90) days prior to the expiration of the Term, or any renewal or extension thereof, Landlord shall have the right to display on the exterior of the Premises the customary sign "For Rent"; and during such period Landlord may show Premises and all parts thereof to prospective tenants during normal business hours. Section 2.2. Renewal Ootion. Provided Tenant is not in default at the time it ex~rcises its option to renew, Tenant shall have the option to renew this lease for two(2) two (2) year terms by giving written notice to Landlord, by certified mail, retrain receipt requested, of such intention to renew not less than nine~ (90) days prior to the expiration of the existing term. Such renewal shall be at the terms, conditions and rents s~t forth herein, except that the fixed minimum rent shall be increased pursuant to the terms set forth in Section 3.1. ARTICLE HI. RENT Section 3.1. Rent. Tenant shall pay annual minimum rent (herein called the "Minimum Rent) to Landlord for the Premises, payable in equal monthly installments herein called "Monthly Minimum Rent") at the respective rates and for the respective periods hereinafter set forth, in advance without offset, deduction, set-off omoanterclaims on the first day of the Term. Tenant shall pay an annual rent in the amount of $20,650.00 in equal payments of $1,720.83 per month. A rental escalation clause of two (2%) pement shall be due on the second and third anniversary of this lease and all additional renewal options thereof. Tenant shall have the option to renew this lease for two consecutive two year terms commencing on December lSt,2004 and September lSt,2006 respectively. Section 3.2. Late Payments and Interest. There shall be paid a late charge of five (5%) percent on all monies that become more than fifteen (15) days in arrears to cover the expenses in handling delinquent payments. In addition, interest shall accrue on any monies due from Tenant to Landlord from the date the same are due at the annual prime interest rate as established from time to time by Community Bank plus one (1%) percent per annum for a period of thirty (30) days. After such thirty (30) day period,. interest shall accrue at the rate of (1½-%) percent per month and each portion thereof for which the sums are unpaid until the same is paid. If Landlord consults any attorney for the collection of any sums from Tenant or other in connection with Tenant's performance hereunder, Tenant shall, whether or not proceeding are instituted, reimburse Landlord the reasonable attorney's fees and court costs, if any. Section 3.3. Security Deoosit. Tenant has deposited with Landlord a sum in the amount of $1,720.83 as a security deposit. This shall be considered as security for the payment and performance by Tenant of all Tenant's obligations, covenants, conditions, and agreements under this Lease. Within ten (10) days after the expiration of the term hereof provided Tenant has vacated the Premises and delivered possession to Landlord in the condition required hereunder. Landlord shall refund such security deposit to Tenant, less such portion thereof as Landlord shall have applied to make good any default by Tenant with respect to any of Tenant's obligations, covenants, condition or agreements under this Lease or applied toward payment of damages suffered by landlord. In the event any default by Tenant hereunder, Landlord shall have the right to apply all or any portion of the security deposit to secure such default, in which event Tenant shall be obligated to and will, within five (5) days after request from Landlord, deposit with Landlord the amount necessary to restore the security deposit to its original amount aforesaid. The use of said security deposit by Landlord shall not excuse Tenant's liability for default hereunder nor limit Landlord's remedies. In the event of the sale or transfer of Landlord's interest in the building in which the Premises are located, Landlord shall transfer the security deposit to such purchaser or transferee, in which event Tenant shall be entitled to look to the new landlord for the remm of the security deposit, and Landlord shall thereupon be released from all liability to Tenant for the remm of such security deposit. ARTICLE IV. EXPENSES Section 4.1. Additional Rent. (a) In addition to the Minimum Rent, Tenant covenants and agrees to pay to Landlord as additional rent and amount equal to its proportionate share "Real Estate Taxes" and "Repair and Common Area Maintenance Costs" (as defined in section 4.2 and Exhibit "B" hereof, respectively). Tenant'~ proportionate share shall be calculated as a fraction which shall have as its numerator the floor area of the Premises and which shall have as its denominator the floor area of all occupied building in the Center. Landlord shall be entitled to estimate all amounts of additional rent payable by reason of this Section4.1 and to obtain payment in advance on account thereof from Tenant on a monthly basis from and after the Commencement Date. Tenant shall pay to Landlord on the first day of each month such estimated Expenses, and to continue to pay on a monthly basis the estimated Expenses. Within ninety (90 following the expiration of any calendar year in which Tenant shall pay any Landlord's estimated Expenses, Landlord shall submit to Tenant a statement prepared by Landlord summarizing the various mounts incurred during calendar year for Expenses. Within ten (10) days following submission of such annual Statement, Tenant shall pay to Landlord any Expenses remaining due and Landlord shall promptly credit to Tenant's next due payment of Expenses, as provided in this Section 4.1, any overpayment of expenses. (b) For the purpose of this Lease, "floor area of the Premises" shall be deemed to mean 1475 square feet. Section 4.2 "Real Estate Taxes" Defined. For the purpose of this Lease, the term "Real Estate Taxes" shall mean taxes, rates and assessments, general and special, levied, assessed or imposed by any lawful authority, falling in whole or in part during the term of this Lease, with respect to the land, building, and improvements located or built within the Center.. Should any governmental taxing authority presently or hereafter levy, assess, or impose a tax, excise and/or assessment, however described ( other than income or franchise tax based upon the gross receipts or net income with respect to the Center ), upon, against, on account of, or measured by, in whole or in part, the rent expressly reserved hereunder, or upon the rent expressly reserved under any other leases or leasehold interests in the Center, as a substitute ( in whole or in part ) ( or in addition to any existing Real Estate Taxes ), such tax or excise on rents shall be included within the term Real Estate Taxes. Reasonable expenses, including reasonable attorneys' fees, expert witness fees and similar costs, incurred in contesting or obtaining or attempfmg to obtain a reduction of any Real Estate Taxes or assessed valuations shall be added to and included in the amount of any such Real estate Taxes. Real Estate Taxes which are being contested shall nevertheless be included for purposes of the computation of the liability of Tenant under this Lease, provided, however, that in the event that Tenant shall have paid any Real estate Taxes and a refund of any portion of any Real Estate Taxes on which such payment shall have been based is thereafter received, Landlord shall credit to Tenant the appropriate portion of such refund. If either the Commencement Date or expiration date of this Lease shall not coincide with the beginning or end ora full lease year, then in computing the amount payable under Section 4.1 for the period between the commencement and/or expiration of the applicable full lease year, Tenant's proportionate share of Real Estate Taxes for the applicable full lease year shall be equitably apportioned ( on a per diem basis ) so that Tenant shall pay only such portion of such Real Estate Taxes a~s is attributable to the portion of such full lease year occurring during the term of thisilease. Tenant's obligation to pay Real Estate Taxes under section 4.2 for the final lease year shall survive the expiration and/or termination of the of this Lease. If any property tax or assessment If the Center consists of separate tax parcels, then the Real Estate Taxes with respect to all of said separate tax parcels ( whether owned by Landlord and/or entity or entities under common control with Landlord ) shall be included as part of Real Estate Taxes for the purpose of this Lease. ARTICLE V. UTILITIES, TRASH REMOVAL, and JANITORIAL SERVICES Section 5.1. Utilities. Landlord shall pay as and when they become due, directly to the company or utility providing the utility service, all operating expenses incurred in the daily operation of the Center, including but not limited to lawn care and snow removal, common electric, sewer, building insurance and water. Tenant shall pay, 5 at its expense, directly to the utility company: electric, gas and water bills for the Premises. Section 5.2. Refuse, Janitorial and Window CleaninR Services. The Tenant shall not permit the accumulation of rubbish, trash, garbage or other refuse in and around the Premises, will remove the same at his expense. All such refuse shall be kept in areas designated by the Landlord. In the event any local or governmental authority shall levy a service fee or charge for the collection and removal of Tenant's refuse, Tenant shall pay promptly when due said fee or charge of service. Tenant shall be responsible for all janitorial services and window cleaning for the Premises, at its sole cost and expense. ARTICLE VI. PERMIITED USE Section 6.1. Permitted Use. Tenant shall occupy the Premises for the sole permitted use for thc retail sale of hockey and fignre skating equipment. Section 6.2. llleRal Use. The Tenant covenants that at no time or times will the Tenant use or permit to be used the Leased Premises or any part thereof, for any unlawful or illegal purpose or in any unlawful or illegal manner, or for the conduct of any public auction and that the Tenant will not carry on the business under any name or in manner permit any advertising which might, in the reasonable judgment of the Landlord, reflect, or tend to reflect adversely on the building erected or to be erected by the Landlord, or confuse or mislead, or tend to confuse or mislead thc public in any apparent connection or relationship, between the Landlord and the Tenant. Section 6.3. Hazardous Activity. Tenant agrees that she will not do or suffer to be done or keep or suffer to be kept, anything in, upon or about the Premises which will contravene the insurance policies insuring the Center against loss or damage by fire or other ba?ards, or which will prevent the procuring of such policies in companies acceptable to Landlord; and if anything done, omitted to be done or suffered to be done by Tenant, or kept, or suffered by Tenant to be kept, in, upon or about the Premises orthe Center to be increased beyond the minimum rate from time to time applicable to the Premises for use for the purpose permitted under this Legs_ c or to such other Center property for the usc or uses made thereof, Tenant will pay thc amount of such increase promptly upon Landlord's demand. ARTICLE VII. PARKING Section 7.1. Parkin~ Area. The Parties agree that the Landlord shall designate that portion of the parking lot to be used by the employees of Tenant and Tenant's employees shall park in such designated spaces. ARTICLE VIII. COMMON AREAS Section 8.1. Use of Common Areas. The term "common areas" as used in this Lease shall mean thc parking areas, driveways, walkways, landscaped areas, berms and other areas and improvements which may be provided for the convenience and use of the occupants and tenants of the Center. During the term of this Lease, and subject to the provision of this Lease, Tenant's use and occupancy of the Premises shall include the 6 non-exclusive use, in common with all other granted fights to use the same and for whose convenience and use the common areas as intended :provided, that such use by Tenant shall be subject to such reasonable roles and regulations governing the same from time to time; and provided, further, that Landlord or any entity or entities under common control with Landlord shall at all times have full control, management and direction of said comnlon areas. Section 8.2. Rioht to Close Areas. Landlord shall have the right to close any Or all portions of the common areas to such extent as may, in the opinion of counsel, be legally sufficient to prevent a dedication thereof or the accrual of any rights to any person or to the public therein, and to close temporarily, if necessary, any part of the common areas in order to discourage non-customer parking and in the exercise of any repair and maintenance obligation or other rights herein reserved with respect to the common areas. If the amount or nature of the common areas and facilities are diminished, this Lease shall remain in full effect, and Landlord shall not be subject to any liability nor will Tenant be entitled to any compensation or diminution of rent, nor shall diminution of such common areas and facilities be deemed constructive or actual eviction. Section 8.3. Common Area Repairs. Landlord shall arrange for the care, maintenance and repair of the common areas on the Center including, but not limited to, repairing, replacing and restfiping paved parking areas when needed, keeping common areas reasonably clear of litter and snow, maintaining any plants and landscaped areas and keeping common areas reasonably lighted at times when the stores in the Center are required to be open for business. Section 8.4. Repairs by Landlord. Landlord shall keep and maintain the foundation, roof and structural portions of the walls of the building in good condition and repair at landlord's sole costs and expense, provided Tenant shall provide Landlord with prompt written notice of the necessity therefor. Except as otherwise provided in this Lease, Landlord shall be under no obligation to inspect or repair any part of the Premises. Tenant shall report to Landlord any defective condition actually known to Tenant, which Landlord is required to repair and failure to do so within five (5) calendar days of the time Tenant becomes aware of the defective condition shall make Tenant responsible to Landlord for the repair of such defective condition, and any liability, cost or expense incurred by Landlord by reason of failure to so report such defective condition. Landlord shall have a reasonable time after receipt of notice from Tenant to commence and complete repairs required of Landlord hereunder. The provisions of this Section regarding Landlord's obligations shall not apply in the case of damage or destxuction by fire or other casualty or by eminent domain, in which events and obligations of Landlord shall be controlled by Articles XI and XII hereof, as applicable. Section 8.5. Repairs by Tenant. Tenant shall keep and maintain the Premises and any fixtures, facilities or equipment contained therein in good condition and repair, including, but not limited to, the heating, air-conditioning, electrical, plumbing systems, the exterior doors and window frames and shall make any replacement thereof, with the exception of the heating and air-conditioning unit, and of all broken and cracked plate glass as may become necessary during the term of this Lease, excepting, however, such repairs and replacements as are the obligation of Landlord under Section 7.4 hereof. If 7 Tenant refuses or neglects to commence or complete repairs promptly and adequately, Landlord may, but shall not be required to do so, make or complete said repairs, Tenant shall pay the cost thereof to Landlord upon demand. ARTICLE VIX. INSURANCE Section (a) 9.1. Tenant's Insurance. At all times after the commencement of this Lease, Tenant will carry and maintain, at its expense a non-deductible: public liability insurance policy, including, but not limited to, insurance against assumed or contractual liability under this Lease, with respect to the Premises, to afford protection with limits, for each occurrence, of not less than One Million ( $1,000,000.00 ) Dollars with respect to personal injury and death, and One Million ( $1,000,000.00 ) Dollars with respect to property damage; (b) all-risks property and casualty insurance, written at replac~raent cost value and with replacement cost endorsement, covering all of Tenant's personal property in the Premises ( including, without limitation, inventory, trade fixtures, floorings, furniture and other property removable by tenant under the provisions of this Lease ) and all leasehold improvements installed in the Premises by or on behalf of Tenant; and (c) if and to the extent required by law, workmen's compensation or similar insurance in form and mount required bylaws (d) Section 9.2. Policy Reeluirements. The company or companies writing any insurance which Tenant is required to carry and maintain or cause to be carded or mainta'med pursuant Section 8.1 as well as the form of such insurance shall at all times be subject to Landlord's approval and any such company or companies shall be licensed to do business in the Commonwealth of Pennsylvania. Public liability and all-risks property and casualty insurance policies evidencing such insurance name Landlord or its designee. Such policy shall not be canc_eled except after thirty (30) days written notice to Landlord or its designee.Each such policy, or a certificate thereof, shall be deposited with Landlord by Tenant promptly upon commencement of Tenant's obligation to procure the same. If Tenant shall fail to perform any of its obligations under Section 9.1 and 9.2, Landlord may perform the same and the cost of same shall be deemed Additional Rental and shall be payable upon Landlord's demand. (e) Section 9.3. Landlord's Insurance. Landlord agrees that the common areas of the Center will be covered by public liability insurance with a mirfimum combined coverage for bodily injury and property damage of one Million Dollars ($I,000,000.000) and ( ii ) all buildings erected on the Center will be covered by "all risk" property insurance for the full replacement cost of such building and improvements. ARTICLE X. SIGNS AND EXTERIOR ATTACHMENTS Section 10.1. Siens and Conformity. Tenant shall erect and maintain its trade name or store identification sign within the area or areas provided for by Landlord; ail such signs shall strictly conform in number, color, style, design and in all other respects to the criteria established by the Landlord for Premises, and shail conform to all locai governmental regulations. Any such signage costs shail be paid for by Tenant and all repairs shall be the sole responsibility of Tenant, including replacement of light bulbs. ARTICLE XI. FIRE AND OTHER DAMAGE Section 11.1. Reoairs by Landlord. In case of damage to the Premises by a risk insured against under Section 8.3, Landlord, unless Landlord shail otherwise elect as hereinafter provided, shall repair or cause to be repaired such damages with reasonable dispatch after receiving from the Tenant written notice of the damage. If the damages are such as to render the Premises untenantable, the rent shail be abated to an extent corresponding with the period during which and the extent to which the Premises have become untenantable; provided, however, if such damages are caused by the carelessness, negligence, intentional, or willful conduct of Tenant or of a subtenant, or the agents, employees, visitors, invites or licensees of Tenant or of a subtenant, then notwithstanding such damage and untenantability, Tenant shail be liable for ret without abatement. In the event of damage to the Premises to the extent of damage to the Premises to the extent of more then fiRy percent (50%) of the vaiue of such Premises, Tenant shall give Landlord written notice of the damage (but failure to give notice shall not be binding upon Landlord), afier which either party may determine with reasonable dispatch, that the Lease shall be terminated, in which event ail rent shall abate the lease Shall terminate as of the date of the occurrence of the event causing such damage. ARTICLE XII.EMINENT DOMAIN Section 12.1 Effect of Taking. In the event the Premises or any part thereof shall be taken or condemned either permanently or temporarily for any public of quasi public use or purpose by any competent authority in appropriate proceedings or by any right of eminent domain, the entire compensation award ~herefore, including, but not limited to, all damages as compensation for diminution in vaiue of the leasehold, reversion, and fee, shall belong to the landlord without any deduction therefrom for any present or future estate of Tenant, and Tenant hereby assigns to Landlord all of its right, title and interest to any such award. Although all damages in the event of any condemnation is to belong to the Landlord, whether such damages are awarded as compensation for diminution in vaiue of the leasehold, reversion or to the fee of the Premises. Tenant shall have the right to claim and recover from the condemning authority, but not from the Landlord, such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right on account of any and all damages to Tenant's business by reason of the condemnation and for or on account of any cost or loss to which Tenant might be put in removing Tenant's merchandise, furniture, fixtures, leasehold improvements and equipment. If the whole of the Premises shall be taken by any public authority under the power of eminent domain, this Lease shail terminate as of the day possession shall be taken by such public authority, and Tenant shall pay rent up to that date with an 9 appropriate refund by Landlord of such rem as shall have been paid in advance for a period subsequent to the date oftha taking. If more than fifty pement (50%) of the floor space of the building in which the Promises are located shall be taken under the power of eminent domain. Landlord may, by notice in writing to Tenant terminate this Lease, and rant shall be paid or refunded as of the date of termination. ARTICLE XIII.NONLIABILITY OF LANDLORD Section 13.1 Landlord Not Resoonsible for Acts of Others. The Landlord shall not be liable to the Tenant, any officer, employee, agent, invitee, licensee or visitor of the Tenant, or any other person, for damage or injury to any person or property caused, in whole or in part, by any act, omission or neglect of Tenant, Tenant's contractors, employees, agents, invitees, licensees or visitors, or any happening in any manner on the Premises, and Tenant shall indcranify, defend and hold harmless Landlord from any claim, loss or liability therefor. Section 13.2 Tenant's Risk. All property kept, stored or maintained on the Premises shall be so kept, stored or maintained at risk of the Tenant only, and the Landlord shall not be liable for any loss or damage to the Tenant or Tenant's property. ARTICLE X]V. ASSIGNMENT AND SUBLETTING Section 14.1 Landlord's Consent Reouired. Tenant will not assign this Lease, in whole or in part, nor sublet all or any part of the Premises, nor license concessions or lease departments therein, nor pledge or secure by mortgage or other instruments this Lease, without first obtaining the written consent of Landlord, which consent may be withhold in Landlord's absolute discretion. This prohibition includes, without limitation, (i) any subletting or assignment which would otherwise occur by operation of law, merger, consolidation, reorganization, transfer or other change of Tenant's corporate or proprietary structure; (ii) an assignment or subletting to or by a receiver or trustee in any Federal or state bankruptcy, insolvency, or other proceedings; (iii) the sale, assignment or transfer of all or substantially all of the assets of Tenant,'0vith or without specific assignment of Lease; or (iv) the change in control in a partnership. Consent by Landlord to any assignment or subletting shall not constitute a waiver or the requirements for such consent to any ~ubsequent assigns or subletting. Any costs and expenses, including attorney's fees, incurred by Landlord in connection with any proposed or purported assignment, transfer or sublease shall be borne by Tenant and shall be payable to Landlord as additional rent. It is understood and agreed that the restrictions set forth in this article area is of primary importance in enabling Landlord to control the mix of Tenants in the Center. Section 14.2Transfer of Landlord's Interest. In the event of any transfer of Landlord's interest in the Premises, including a sale or Lease, the Landlord shall be automatically relieved of any and all obligations accruing from and after the date of such transfer, provided that (a) the interest of the Landlord in any funds then in the hands of Landlord in which Tenant has an interest shall be turned over, subject to such interest, to the transferee; and (b) notice of such sale, transfer or lease shall be delivered to Tenant as required by law and this Lease. 10 Section 14.3 Transfer of Corporate Shares. If Tenant is a corporation at any time after execution of this lease any part of all of the corporate shares shall be transferred by sale, assignment, bequest, inheritance, operation of law or other disposition ( including, but not limited to, such a transfer to or by a receiver or trustee in a Federal or state bankruptcy, insolvency, or other proceedings) so as to result in a change in the present control of said corporation by the person or persons now owning a majority of said corporate share, Tenant shall give Landlord notice of such event within fifteen (13) days fi.om the date of such transfer. In such event and whether or not Tenant has given such notice, Landlord may elect to terminate this Lease at any time there after by giving Tenant notice of such election, in which event this lease and the rights and obligations of the parties hereunder shall cease as of the date set forth in such notice which date shall not be tess then sixty-(60) day after the date of such notice. In the event of any such terminations, all rental (other then any Additional Rental due Landlord resulting fi'ora Tenant's failure to perform any of its obligations hereunder) shall be adjusted as of the date of such termination. Section 14.4 Acceotance of Rent from Transferee. The acceptance by Landlord of the payment of rent following any assignment or other transfer prohibited by this Article shall not be deemed to be a consent by Landlord to any such assignment or other transfer nor shall the same be deemed to be a waiver of any right or remedy of Landlord hereunder. ARTICLE XV. VOLUNTARY OR INVOLUNTARY ASSIGNMENT Section 15.1 Landlord's Written Consent. Neither this Lease nor any interest herein shall be assignable or otherwise transferable by operation of law or by voluntary assignment or for the benefit of creditors without the written consent of the Landlord, and such inhabitation against voluntary assignment includes and comprehends any and every assignment which might otherwise be affected or accomplished by Bankruptcy, receivership, attachment, execution or other judicial process or proceeding. If any assignment for the benefit of Tenant's creditors should be made by Tenant, or ifa voluntary or involuntary petition in bankruptcy or for rec~rganization or for a arrangement should be filed by or against the Tenant and not dismissed within ninety (90) days, or if the Tenant should be adjudicated a bankrupt or insolvent, or if a receiver is appointed of or for the Tenant, or for all or a substantial part of Tenant's property, or of such assignment or transfer by operation of law should occur, then and in any such event, the Landlord may, at Landlord's option, terminate this Lease by notice to the Tenant. The provisions of this paragraph shall not apply to any of the rights, titles and interests of the Landlord n, to or under this Lease. ARTICLE XVI.SURRENDER AT LEASE TERMINATION. Section 16.1 Surrender of Premises. The Tenant shall, upon termination of the Term of this Lease, surrender to the Landlord the Premises and all building apparatus, machinery, equipment and fixtures situated thereon, except items, which may be removed under Article I. Section 1.5. 11 ARTICLE XVII. DEFAULT AND REMEDIES Section 17.1 .Events of Default. The Lease is made upon the condition that the Tenant shall punctually and faithfully perform all of the covenants and agreements by it to be performed as herein set forth, and if any one or more of the following events shall occur said event shall be deemed a default: (a) any rent or other sums required to be ~ paid by Tenant hereunder, or any part thereof, shall at any time be in arrears and unpaid for five (5) days after the same is due, Co) or there by any failure on the part of the Tenant in the observance or performance of any of the covenants, agreement, or conditions of this Lease on the part of the Tenant to be kept and performed [other then as set forth at 17.1 (a) ], and said failure shall continue for a period of fifteen (15) days after written notice thereof fi.om Landlord to Tenant (unless such failure cannot reasonably be cured within fifteen (15) days and Tenant shall have commenced to cure said default within said fifteen (15) days and continues diligently to pursue the curing to completion, or (c) the Tenant shall file a petition in bankruptcy or be adjudicated a bankrupt, or file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief for itself under any present or future federal, state or other statute, law or regulation, or make an assignment for benefit of creditors, or (d) an trustee, receiver or liquidation of Tenant or of ail or any substantial part of its properties or oftbe Premises shall be appointed in any action, suit or proceeding by or against Tenant and such proceeding or action shall not have been dismissed within forty- five (45) days after such appointment, or (e) the Tenant's merchandise or fixtures of Tenant's leasehold estate in the Premises shall be taken on execution or by other process of law, or (f) if Tenant shall remove from the premises during the term or renewal term of this Lease, or cease to use or occupy the same as herein provided, Lessor may, at its option, immediately and without liability therefor, re- enter said premises without notice or demand, and lease the said premises to any other person or persons, and said Lease shall be liable for any loss in rent for the balance of the term or renewal term. Section 17.2 Landlord's Remedies. Should a default occur under this Lease, Landlord may pursue any or all of the following: (a) Landlord, in addition to other rights or remedies it may have, shall have the right, by written notice to Tenant, to declare this Lease terminated and the term ended, in which event, this Lease and the term hereof shall expire, cease and terminate with the same force and effect as though the date set forth in the notice of termination were the date originally set forth herein and fixed for the expiration of the terra, and Tenant shall vacate and surrender the Premises but shall remain liable for all obligations arising during the balance of the stated term as if this Lease had remained in full force and effect. Co) Landlord shall have the right to bring a special proceeding to recover possession from Tenant holding over and/or Landlord may, in any such events, with notice, re-enter the Premises and dispossess, by summary proceedings or otherwise, Tenant and the legal representatives of Tenant or other occupant(s) of the Premises and remove their effects and Tenant shall have no further claim or right hereunder. To the extent permitted by law, Tenant waives any right of redemption. No re-entry or commencement of any action for re-entry shall be conslxued 12 08/14/2003 10:01 7175GSG?99 B&B HOCKEY PAGE as an election to terminate this Lease and shall not absolve or release Tenant from any of its obligations for the remainder of the term of this Lease. In the event of re-entry, Landlord may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the expense and risk of Tenant, with notice or resorl to legal process and without Landlord being deemed grfilty of trespass or becoming liable for any loss or damage which may be occasioned thereby. Tenant hereby waives all fight to ~rial by jury in any claim, action or demand asserted' against Tenant by Landlord by reason of this Lease. ( c ) Should Landlord elects to re- enter, as herein provided, or should it take possession pursuant to legal proceeding or pursuant to any notice provided for by law, it may either terminate this Lease or it may from time to time, without terminating this Lease, make such alterations and repairs as may be necessary in order to relet Premises, and relet said Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of thls Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such re-letting al rentals all rentals and other sams received by Landlord from such reletting shall be applied, first, to the payment of any indebtedness other then rent due hereunder from Tenant's Landlord; second, to the payment of any costs and expenses of such re-letting, including reasonable brokerage fees and attorney's fees and the costs of any alterations and repairs; and the residue, if any, shall be applied in payment of rent and other charges due and unpaid hereunder. If such rentals and other sums received from such re-letting during any month be less then that to be paid during that month by Tenant. Tenant shall pay such deficienay to Landlord; if such rentals and the sums shall be more, Tenant shall have no fight to, and shall receive no credit for, excess. Such deficiency shall be calculated and paid monthly. No re-entry of taking possession of said Premises by Landlord shall be construed as an election on its part to terminate this Lease notice of such intention be given to Tenant or unless the t~Jafination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time elect to terminate this Lease for such previous breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Premises, reasonahle attorney's fees, and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in the Lease for the reminder of the stated term over the then reasonable rental value of the Premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord. The failure of Landlord to relet the Premises shall not affect Tenant's liability. The terms "entry" and '~e-entry' are not limited to their technical meanings. Nothing contained in this Lease shall be constxued to limit or prejudice the right of Landlord to prove for and obtain as damages by reason of the termination of this Lease or re-entry of the Premises for the default of the Tenant under this Lease an amount to the maximum allowed by any statute or role of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount shall be greatex than any of the sums referred to in this Section 17.2, Section 17.3. Additional Remedies. If Tenant shall be in default Landlord shall have the option, bm not the obligation, upon three-(3) days written notice to Tenant, 13 AUG-14-2803 11:02 717566~799 97~ P.81 to cure the act or failure constituting said default for the account of and at the expense of Tenant. Landlord's cure or attempt to cure any act or failure constituting the default by Tenant shall not result in a waiver of such default or release of Tenant with respect to such default. Tenant agrees to pay Landlord interest, in accordance with Section 3.2 hereof, on all sums expended by Landlord pursuant to this Section 17.3 fi:om the date of such expenditure, and Tenant agrees to pay the costs incurred by Landlord pursuant to this Section 17.3 to Landlord upon demand. All rights and remedies of the Landlord : herein enumerated shall be cumulative, and none shall exclude any other remedies allowed at law or in equity. Section 17.4. Bankruotcv. Neither Tenant's interest in this Lease shall pass to any trustee or receiver or assignee for the benefit of creditors or otherwise by operation of law, except as may be specifically be provided pursuant to the Bankruptcy Code (11 USC Section 101), as the same may be amended from time to time. (a) Rights and Obligations under the Bankruptcy Code. (1) It is understood and agreed that this Lease is a lease of real property in a shopping center as such lease is described in Section 365 of the Bankruptcy Code, as the same may be amended from time to time. (2) upon filing of a petition by or against Tenant under the Bankruptcy Code, Tenant, as debtor and as debtor-in-possession, and any trustee who may be appointed with respect to the assets of or estate in bankruptcy of Tenant, agree to pay monthly in advance on the first day of each month, as reasonable compensation for the use and occupancy of the Premises, an amount equal to all Minimum Rent, Expenses and other charges otherwise due pursuant to this Lease.(3) Included within and in addition to any other conditions or obligations imposed upon Tenant or its successor in the event of the assumption and/or assignment of this Lease are the following: (I) the cure of any monetary defaults and reimbursement of pecuniary loss within not more than thirty (30) days of assumption and/or assignment;(II) the deposit of an additional sum equal to not less than three (3) months' Min/mum Rent and additional rent to be held pursuant to the terms of Section 3.3.of this Lease; (III) the use of the Premises as set forth in Section 5.1 of this Lease; (IV) the prior written consent of any mortgagee to which this Lease has been assigned as collateral security. ARTICLE XVIII. HOLDING OVER Section 18.1. Surrender and Holdin~ Over. Tenant shall deliver upon and surrender to Landlord possession of the Premises and upon the expiration of the Lease, or its termination in any way, in as good condition and repair as the same shall be at the commencement of said term (damage by fire and ordinary wear and decay only excepted), and shall deliver the keys at the office Landlord or Landlord's agent. Should Tenant or any party claiming under Tenant remains in possession of the Premises, or any part there of, al~er expiration or any termination of this Lease, no Tenancy or interest in the Premises shall result therefrom but such holding over shall be an unlawful detainer and all such parties shall be subject to immediate eviction and removal, and Tenant shall upon demand pay to Landlord, as Liquidated damages, a sum equal to double the Minimum Rent as specified herein for any period during which Tenant shall hold thc Premises after the stipulated term of this Lease may have expired of terminated. 14 as an election to terminate this Lease and shall not absolve or release Tenant from any of its obligations for the remainder of the term of this Lease. In the event of re-entry, Landlord may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the expense and risk of Tenant, with notice or resort to legal process and without Landlord being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby. Tenant hereby waives all fight to trial by jury in any claim, action or demand asserted.. against Tenant by Landlord by reason of this Lease. ( c ) Should Landlord elects to re- enter, as herein provided, or should it take possession pursuant to legal proceeding or pursuant to any notice provided for by law, it may either terminate this Lease or it may from time to time, without terminating this Lease, make such alterations and repairs as may be necessary in order to relet Premises, and relet said Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such re-letting al rentals all rentals and other sums received by Landlord from such reletting shall be applied, first, to the payment of any indebtedness other then rent due hereunder from Tenant's Landlord; second, to the payment of any costs and expenses of such re-letting, including reasonable brokerage fees and attorney's fees and the costs of any alterations and repairs; and the residue, if any, shall be applied in payment of rent and other charges due and unpaid hereunder. If such rentals and other sums received from such re-letting during any month be less then that to be paid during that month by Tenant. Tenant shall pay such deficiency to Landlord; if such rentals and the sums shall be more, Tenant shall have no right to, and shall receive no credit for, excess. Such deficiency shall be calculated and paid monthly. No re-entry of taking possession of said Premises by Landlord shall be construed as an election on its part to terminate this Lease notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time elect to terminate this Lease for such previous breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Premises, reasonable attorney's fees, and includIng the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in the Lease for the reminder of the stated term over the then reasonable rental value of the Premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord. The failure of Landlord to relet the Premises shall not affect Tenant's liability. The terms "entry" and "re-entry" are not limited to their technical mear~ings. Nothing contained in this Lease shall be construed to limit or prejudice the right of Landlord to prove for and obtaIn as damages by reason of the termination of this Lease or re-entry of the Premises for the default of the Tenant under this Lease an amount to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount shall be greater than any of the sums referred to in this Section 17.2. Section 17.3. Additional Remedies. If Tenant shall be in default Landlord shall have the option, but not the obligation, upon three-(3) days written notice to Tenant, 13 ARTICLE XIX. MISCELLANEOUS Section 19.1 Subordination of Tenant's Interest. Tenant shall subordinate Tenant's Interest in the Premises to the lien, operation and effect of mortgages as requested by Landlord from time to time, and, at Landlord's expense, will promptly execute and deliver such agreement or agreements as may reasonably required by any mortgage or trustee. Section 19.2. Release of Liability. Landlord and Tenant hereby release the other from any and ail liability or responsibility to the other or anyone claiming through or under them by way of subrogation of othenvise for any loss or damage to property caused by fire or any of the extended coverage or supplementary contract casuaities, even if such fire or other casualty shail have been caused by the fault or negligence of the other party, or any one for whom such party may be responsible, provided, however, that this release shail be applicable and in force and effect only with respect to loss or damage occurring during such time as the releasor's policies shall contain a clause or endorsement to the effect that any such release shail not adversely affect or impair said policies or prejudice the right of the releasor to recover thereunder. Each party shall obtain insurance policies containing such waiver of subrogation clause(s) for all insurance policies which relate to the Premises or use of the Premises. Section 19.3. Right of Recovery Aoainst Landlord. Tenant agrees that in the event the Landlord is in default under this Lease, any mortgagee or trustee under a deed of trust of Landlord's interest in the Premises, and the landlord under any ground or underlying lease which includes the Premises, shall be permitted ( but not required) to enter the Premises during normal business hours for the purpose of correcting or remedying such default, and Tenant agrees to accept performance by such mortgagee, trustee, or ground or underlying landlord in lieu of performance by the Landlord. Tenant further agrees that, from and after specific written request by Landlord to do so (which request sets forth the name and address of any mortgagee, trustee or ground or underlying landlord), Tenant will, simultaneously with the giving of any notice to landlord as required or permitted hereunder, give a copy of such notice to such mortgagee, trustee or ground or underlying landlord and that any such notice fo Landlord shall not be effective unless Tenant has simultaneously given notice to such mortgagee, trustee or ground or underlying landlord. Section 19.4 Amendments to Lease. Tenant, at Landlord's expense, agrees to consent to, and to execute and deliver promptly upon each request from Landlord, such reasonable amendments to this Lease as may be requested by any bank, savings and loan association, insurance company or other institutional lender providing bona fide mortgage loans to Landlord in connection with the Center or by any ground landlord ( if any) of the land appurtenant thereto, provided, however, that such amendments do not impair or otherwise materiaily affect Tenant's leasehold interest n the Premises, and provided further that such amendments do not reduce, increase or change the term of this Lease, nor affect the rate or cost of rentai and other obligations of Tenant hereunder, not create any material obligations, liabilities, duties or responsibilities of any nature whatsoever upon the Tenant greater than those to which Tenant is herein corranltted. 15 Section 19.5. Additional Documents. Tenant shall, at the request of Landlord and at Landlord's sole cost and expense, execute such additional instruments that Landlord or Landlord's mortgagee may request from time to time or as may be required or convenient hereunder, not inconsistent herewith. Section 19.6. Access by Landlord. Landlord covenants and warrants that, upon the Term of the Lease commencing, Landlord shall have full Term hereof; that Landlord will be lawfully seized of the entire Premises and will have good title thereto; and that, at ail times when Tenant is not in default under the terms and during the term of this Lease, Tenant's quiet and peaceable enjoyment the Premises shall not be disturbed or interfered with by anyone. Landlord, in person or by agent, shall be permitted to enter upon the Premises at reasonable times to examine the same or to make such as are required hereunder. Section 19.7. Successors and Assigns. This Lease shall inure to the benefit of and shall bind the respective successors and assigns of the parties to the extent that the parties' rights hereunder may succeed and be assigned according to the terms hereof. Section 19.8. Non-Waiver. No waiver of any condition or legal right or remedy shail be implied by the failure of Landlord to declare a forfeiture, or for any other reason, and no waiver of any condition or covenant shail be vaiid unless it is in writing signed by the Landlord. No waiver by Landlord in respect to one tenant of the building in which the Premises are located shall constitute a waiver in favor of any other tenant, nor shail the waiver of a breach of any condition be claimed or pleased to excuse a future breach of the same condition or covenant. The mention in this Lease of any specific right of remedy shail not preclude Landlord from exercising any other or from having any other remedy or from maintaining any action to which it may be otherwise entitled either at law or in equity; and for the purpose of any suit by Landlord brought or based on this Lease, this Lease shall be construed to be divisible contract, to the end that successive actions may be maintained as successive periodic sums shall mature under this Lease, and it is further agreed that failure to include in any suit or action any sum or sums then matured shall not be a bar to the maintenance of any suit or action for the recovering of said sum or sums so omitted. Section 19.9. Notice. If, at any time after the execution of this Lease, it shall become necessary or convenient for one of the parties hereto serve any notice, demand or communication upon the other party, such notice, demand or communication shail be in writing signed by the parties serving the same. Notice to Landlord Notice to Tenant Lady Remlyn, Inc. P.O. Box 1123 Camp Hill, PA 17011 16 Section 19.10. Liability of Landlord. Neither Landlord, Landlord's beneficiaries, any persons or entities comprising Landlord, nor any successor in interest to Landlord (or to such persons or entities) shall have any personal liability for any of this Lease applicable to Landlord. Tenant shall look solely to the equity of the then owner of the Leased Premises in such property for the satisfaction of any remedies of the Tenant in the event of a breach by Landlord of any of its obligations hereunder provided that Landlord maintains liability insurance as set forth in Section 9.3. Section 19.11. Comoliance with the Laws of Pennsylvania. This agreement may be signed in any number of counterparts and shall be construed under the laws of the Commonwealth of Pennsylvania. Section 19.12. Waiver of Counterclaims. Tenant shall not impose any counterclaim or counterclaims in a summary proceeding or other action based on termination or holdover. Section 19.13. Waiver of Jury Trial Landlord and Tenant hereby waive trial by jury in any actions, proceeding or counterclaim brought by either of the parties hereto against the other on, or in respect of, any matter whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant hereunder, Tenant's use or occupancy of the Leased Premises and/or any claim of injury or damage. Section 19.14. Entire Altreement. This Agreement represents the entire agreement between the parties hereto. There are no agreements, negotiations or representations, oral or written, other than as set forth herein. IN WITNESS WHEREOF, the Tenant has caused the Lease to be signed and Landlord has caused this Lease to be signed by its duly authorized officer or agent and has affixed its seal the day and year first above written. ATTEST: LANDLORD: t.) Secretary ~ESS: ' C~ (SEAL) ///. 17 REPAIR AND COMMON AREA MAINTENANCE COSTS Common area maintenance costs shall include all costs and expanses of every kind and nature as may be paid or incurred in operating, policing, protecting, insuring, managing, equipping, lighting, repairing, replacing and maintaining thc common areas and (facilities) of the Center including but not limited to, the cost and expense of: ( 1 )operating, maintaining, repairing, replacing, lighting, cleaning, sweeping, painting, and resurfacing, of the common areas and facilities, including, but not limited to: parking lots, curbs, gutters, sidewalks, paving, vehicle area lighting facilities, lighting and sound facilities, storm and sanitary drainage systems, utility sprinkler and security alarm system, ( Center signs on and offthe Center site, retaining walls, curbs, gutters, fences, sidewalks, canopies, steps and romps in the common areas, exclusive of casualty loss replacement covered by insurance; ( 2 )reserve for resurfacing the parking lot, curbs, gutters and sidewalks calculated on a ten (10) year life; ( 3 )gardening, landscaping, and maintenance of grass, trees and shrubbery; ( 4 )all premiums for all insurance maintained in connection with the Center, including, without limitation:the insurance referred to in Article IX hereof; worker's compensation; sign insurance; and (if available) loss of rent insurance for up to a twelve (12) month period; ( 5 )security; ( 6 )personal property taxes on equipment and systems in, pertaining to, or used in maintaining and operating the common areas and outdoor areas; ( 7 )utility charges and other costs of lighting the common areas, the vehicle areas, center signs and other like facilities; ( 8 )vehicle line painting, and removal of snow and ice; (9) equipment, machinery and supplies in the operation and maintenance of the common areas ( including cleaning and snow removal equipment ) and Center si~cmq fixtures, furnishings ( including the cost of inspection and depreciation thereof unless the original cost was included in the common area maintenance costs ); 10) power and fuel for operating common area equipment and systems, and for operating vehicles and equipment used for cleaning, maintenance and snow removal; (11) salaries of personnel directly engaged in operating, cleaning and maintaining the common areas ( including security personnel and parking attendants ), and all related payroll charges, benefits and taxes; and 18 ( 12 ) any management fees paid for the management of the Center, not in excess of amounts paid for comparable Centers in the metropolitan area wherein the Center is located. (13) service contracts for the heating and air conditioning units of the Premises. (14) water and sewer service for the Premises. 19 EXHIBIT "B" 08/88/2003 11:38 7175&~$799 B~B HOCKEY PaGE ~2 ,~,.,u~e to de~mt rbe px~tms~. [ ~ ~king fo~ a pa~cm o{ ~2. P00. f~ Please m.ke :~an~mcm~ ',v~b mc rO g~ ~ccc~ to d~e prc~'vse~ before F~d~ ~u~l 15'~, 2003 A ~e~ AUG-08-2003 12:38 7175666799 9i3Z P.D2 CERTIFICATE OF SERVICE I, Melanie L. Kirk, Legal Assistant with the law firm of Cunningham & Chemicoff, P.C., hereby certify that he served a true and correct copy of the Petition for Preliminary Injuction was served upon the following via first Class, Certified, Restricted Delivery Mail, postage prepaid, on August 14, 2003: Lady Remlyn, Inc. P.O. Box 1123 Camp Hill, PA 17011 Date: Leslie Jacobson, Esquire 8150 Derry Street, Suite A Harrisburg PA 17111-5260 Melanie L. Kirk DAVID FOORB t/d/b/a B&B HOCKBY and LISA FOORE, Plaintiffs LADY REMLYN. INC. Defendant IN ~ COURT' OF COMMON PLEAS FOR CUMBERLAND COUNTY, pBNNSYLVANIA Civil Action - Equity Case No. O3 - .g q 7,7 ORI}ER ~2qD NOW, this~ day o£Augtmt, 2003, upon considm'ation of the verified Complaint in Equity in this action and thc m:companying Amended Fetition for Preliminary Injun~ive Relief, it is hereby ORDER.ED that Defendant, its agents, officers, and attorneys, are: (I) Upon posting o£ a bond in thc o_mount of $$, 162.d 9, immediamlY ordered t° cease and desist any and all etlbrts to market and/or se/1 the inventory, equipment ~ assets that w~re located within the building designated as Su~t~ F, St. John's Place, located at 4401 Carlisle Pike, Hampton Township, Cumberland County, panmylvania containing approximately 1,475 square fe~t of retail .~paee as of Ju.~ 1. 2003: (2) Directed[ to show cause bo£orc this Court on the ~,~f day of ~(-,2003, at ~,?0/?,m. inCou, rtroomnumber ~/~_,C~tmbcrlandCountyCourthouse, Carlisle, Pennsylvania, why a preliminary injunction should not be continued providing the r,lief requested by the Plaintiffs. Plainer shall ca~c copies of this Order and Rule to Show Ca~s¢, the Complsint in Equity and the Petition for Injunctive Relief with its accompanyinl~ papers to be served upon all parties in interest at least ~ days prior to the. d~te of the hearing. BY THE COURT: DAVID FOORE t/d/b/a B&B HOCKEY and LISA FOORE, Plaintiffs VS. LADY REMLYN, INC., Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY 03-3973 EQUITY 1N RE: AMENDED PETITION FOR PRELIMINARY INJUNCTIVE RELIEF ORDER AND NOW, this 2 ? ~ day of August, 2003, at the request of counsel, hearing in the above captioned matter set for August 29, 2003, is continued generally. Either party may request that this matter be relisted for hearing. BY THE COURT, F~nr~ W. Van Eck, Esquire or the Plaintiffs ~eslie Jacobson, Esquire For the Defendant :rim Kevin ~x/Hess, J. /