Loading...
HomeMy WebLinkAbout07-4126Sherill T. Moyer, Esquire Attorney I.D. No. Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants : CIVIL ACTION -LAW NO. ~ ~ - ~ ~ a- ~v G 1 ~; I -~ ~ rh PRAECIPE FOR ENTRY OF JUDGMENT To: The Prothonotary Pursuant to the attached Confession of Judgment, please enter judgment in favor of the Plaintiff, Cedar Stonehedge, LLC, and against the Defendant, Dawn Shughart, and damages are assessed in the amount of $26,186.55 plus interest from the date of judgment, attorneys' fees and costs of collection. A form Entry of Judgment is attached hereto. BROADS & SINON LLP Dated: July 10, 2007 By: Sheril .Moyer, Esquire Kenneth J. Rollins, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for the Defendants, Dawn Shughart Realty, LLC and Dawn Shughart, individually, for the purpose of confessing judgment; Attorneys for the Plaintiff, Cedar- Stonehedge, LLC, for all other purposes C N ° O Y { y ~.. ~~~ ~ ~` _. -~ r ~.C ~.,,.~ -- VJ ~~ ~~ Sherill T. Moyer, Esquire Attorney I.D. No. Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants CIVIL ACTION -LAW NO. D ~ - y l ~- ~ C.1 ~ ~~ I -I errs PRAECIPE FOR ENTRY OF JUDGMENT To: The Prothonotary Pursuant to the attached Confession of Judgment, please enter judgment in favor of the Plaintiff, Cedar Stonehedge, LLC, and against the Defendant, Dawn Shughart Realty, LLC, and damages are assessed in the amount of $26,186.55 plus interest from the date of judgment, attorneys' fees and costs of collection. A form Entry of Judgment is attached hereto. BROADS & SINON LLP Dated: July 10, 2007 By: Sheri T. Moyer, Esquire Kenneth J. Rollins, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for the Defendants, Dawn Shughart Realty, LLC and Dawn Shughart, individually, for the purpose of confessing judgment; Attorneys for the Plaintiff, Cedar- Stonehedge, LLC, for all other purposes c "' d - '` ` t""' t7~~ - ~ .. T ~ ~ r.. _. ~ Yi J ~.~ l ~. J ' ~, ~ %'_'R S ~ A ~ J ,tom ! ~ .. ~ V ) ^3 r Sherill T. Moyer, Esquire Attorney I.D. No. Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants CNIL ACTION -LAW NO. ~ 7- yf ~, ~ cl~. ~ -~Q ~P, CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint in Confession of Judgment (Money Judgment) filed in this action, I appear for the Defendants and confess judgment in favor of the Plaintiff, Cedar- Stonehedge, LLC, and against the Defendant, Dawn Shughart, as follows, plus interest and costs from the date of judgment, attorneys' fees, and costs of collection as follows: Base Monthly Rent (March -April): Base Monthly Rent (May -August): Tax Rent (March -August): Common Area Rent (March -August): Management Fee (March -August): Late Charges: Broker's Commission: Less Amounts from New Tenant: Less Security Deposit: Plus Attorney's Commission (15%): TOTAL $4,177.30 (2 months X $2,088.65) $10,443.24 (4 months X $2,610.81) $1,038.48 (6 months X $173.08) $1,431.00 (6 months X $238.50) $501.30 (6 months X $83.55) $150.00 $7,500.00 ($0.00) ($2,470.41) $3,415.64 $26,186.55 i Dated: July 10, 2007 Respectfully submitted, BROADS & SINON LLP By: Sh 11 T. Moyer, Esquire Kenneth J. Rollins, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for the Defendants, Dawn Shughart Realty, LLC and Dawn Shughart, individually, for the purpose of confessing judgment; Attorneys for the Plaintiff, Cedar-Stonehedge, LLC, for all other purposes n ~ ~ C ~ r1 ~ -Et f-.. ~ ~ -- - -~,-t r"~ ~ 7~~~ ~ _ rTr ~_ ~. ...~ {.TQ t'~ ~ Sherill T. Moyer, Esquire Attorney I.D. No. Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC Plaintiff v. DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint in Confession of Judgment (Money Judgment) filed in this action, I appear for the Defendants and confess judgment in favor of the Plaintiff, Cedar- Stonehedge, LLC, and against the Defendant, Dawn Shughart Realty, LLC, as follows, plus interest and costs from the date of judgment, attorneys' fees, and costs of collection as follows: Base Monthly Rent (March -April): Base Monthly Rent (May -August): Tax Rent (March -August): Common Area Rent (March -August): Management Fee (March -August): Late Charges: Broker's Commission: Less Amounts from New Tenant: Less Security Deposit: Plus Attorney's Commission (15%): $4,177.30 (2 months X $2,088.65) $10,443.24 (4 months X $2,610.81) $1,038.48 (6 months X $173.08) $1,431.00 (6 months X $238.50) $501.30 (6 months X $83.55) $150.00 $7,500.00 ($0.00) ($2,470.41) $3,415.64 TOTAL $26,186.55 ~- Dated: July 10, 2007 Respectfully submitted, BROADS & SINON LLP By: Sh 1 T. Moyer, Esquire Kenneth J. Rollins, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for the Defendants, Dawn Shughart Realty, LLC and Dawn Shughart, individually, for the purpose of confessing judgment; Attorneys for the Plaintiff, Cedar-Stonehedge, LLC, for all other purposes ~' `~~ c ~; .--~ .--- ~~, °, ~` - .~ ~ ~, "-~ z , , ~ .~-. t C ~.1 Sherill T. Moyer, Esquire Attorney I.D. No. Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA v. : CIVIL ACTION -LAW DAWN SHUGHART REALTY, LLC NO. D 7 , ~ ~ ~ (~ ~) ,~ I ~ ~ ~M and . DAWN SHUGHART, individually Defendants COMPLAINT IN CONFESSION OF JUDGMENT (MONEY JUDGMENT) NOW COMES Plaintiff, Cedar-Stonehedge, LLC ("Cedar" or "Landlord', by its undersigned attorneys, Rhoads & Sinon LLP, and files the within Complaint in Confession of Judgment (Money Judgment), stating as follows: 1. Cedar is a Delaware limited liability company having an office at 3307 Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Cedar is a wholly-owned subsidiary of Cedar Shopping Centers, Inc., a Maryland corporation having an office at 44 South Bayles Avenue, Port Washington, New York 11050. 3. Upon information and belief, Defendant Dawn Shughart Realty, LLC, d/b/a Dawn & Associates Realty ("Tenant"), is a Pennsylvania limited liability company having an office at 1156 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013. 654903.E ,~ 4. Upon information and belief, Defendant Dawn Shughart ("Guarantor") is an adult individual employed at 1156 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013. 5. Upon information and belief, Guarantor owns a controlling interest in Tenant. BACKGROUND 6. On or about May 1, 2004, Stonehedge Center, LLC ("Stonehedge") entered into a Shopping Center Lease (the "Lease") with Tenant, pursuant to which Stonehedge leased to Tenant space in a shopping center located at 950 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013, known as "Stonehedge Square," as more particularly depicted in Exhibit "A" to the Lease (the "Leased Premises"). A true and correct copy of the Lease is attached hereto as Exhibit "A" and is incorporated herein by reference. 7. On or about July 21, 2006, Cedar consummated its acquisition of the Stonehedge Square shopping center from Stonehedge. 8. On or about July 21, 2006, in connection with the sale of Stonehedge Square, Stonehedge assigned its rights and obligations under the Lease to Cedar. 9. The Lease describes the "Lease Term" as: "Commencing on the Lease Commencement Date and ending at 12 noon on the Expiration Date (see Article 2)." See Lease, Section 1(F). 10. Article 2 of the Lease provides, in pertinent part: "The Lease Term shall expire without notice on the `Expiration Date'." See Lease, Section 2. 11. The Lease describes the "Expiration Date" as: "The last day of the calendar month in which occurs the 3ra anniversary of the day immediately preceding the Rent Commencement Date (see Article 2)." See Lease, Section 1(G). -.. 12. The Lease describes the "Rent Commencement Date" as: "90 days after the Lease Commencement Date (see Article 2)." See Lease, Section 1(E). 13. The Lease describes the "Lease Commencement Date" as: "The date this Lease is fully executed by Landlord and Tenant (see Article 2)." See Lease, Section 1(D). 14. The Lease was executed by Guarantor on behalf of Tenant on Apri130, 2004, and by a representative of Stonehedge on May 18, 2004. Accordingly, the Lease Commencement Date was May 18, 2004. See Lease, pp. 2-3. 15. The Rent Commencement Date was August 16, 2004, which was ninety (90) days after May 18, 2004. 16. The Expiration Date is August 31, 2007, which represents the last day of the calendar month in which the third anniversary of the Rent Commencement Date occurred. 17. The Monthly Base Rent for third year of the Lease is $2,088.65. See Lease, Section 1(H). 18. In addition to Base Rent, Tenant is required to pay monthly Tax Rent in the amount of $173.08, monthly Common Area Rent in the amount of $238.50, and a monthly Management Fee in the amount of $83.55. See Lease, Sections 3(A), 5(B) and 8(D). 19. All payments due under the Lease are due on the first day of each calendar month. See Lease, Section 3(A). 20. Late payments are subject to a $50.00 late charge. See Lease, Section 3(C). COUNTI CONFESSION OF JUDGMENT CEDAR-STONEHEDGE, LLC V. DAWN SHUGHART REALTY, LLC 21. The averments set forth in Paragraphs 1 through 20 are incorporated herein by reference. ,,. 22. By letter dated March 22, 2007, Tenant notified Cedar of its intention to vacate the Leased Premises on April 15, 2007 (the "March 22nd Letter"). A true and correct copy of the March 22nd Letter is attached hereto as Exhibit "B" and incorporated herein by reference. 23. In the March 22nd Letter, Tenant stated that: "We would like to have our lease term end on April 30, 2007. We have every intention of paying our last two months rent when vacating. Please contact me with your decision regarding our lease so I can plan accordingly." 24. February's past-due rent payment was enclosed with the March 22nd Letter; however, the past-due March rent payment was not. 25. By letter dated March 26, 2007, Cedar denied Tenant's request for early termination, reciting the terms of the Lease and its August 31, 2007 expiration date, and stating that Cedar expected Tenant to observe its obligations under the Lease (the "March 26d' Letter"). A true and correct copy of the March 26`h Letter is attached hereto as Exhibit "C" and incorporated herein by reference. 26. Despite Cedar's denial of Tenant's request for early termination of the Lease, Tenant vacated the premises on April 16, 2007. 27. Tenant has failed to remit rent payments for the months of March, April, May, June and July, 2007. 28. Accordingly, Tenant is in default under Sections 15(A)(1) and 15(A)(8) of the Lease. 29. Section 9(B) of the Lease prohibits Tenant from operating a similar business at any location within three (3) miles of the Leased Premises. 30. Tenant is currently operating the business that it had been running out of the Leased Premises at a location approximately four hundred (400) yards from the Leased Premises. ~.~ 31. Accordingly, Tenant is in default under Section 15(A)(2) of the Lease. 32. A violation of Section 9(B) triggers atwenty-five percent (25%) increase in annual Base Rent. See Lease, Section 9(B). 33. Tenant violated Section 9(B) in April; accordingly, the increase in rent is applicable to May's rent and each subsequent month while the violation is ongoing. 34. Section 9(C) of the Lease requires that Tenant continuously operate its business from the Leased Premises diligently and with a full staff. 35. Tenant ceased operating its business from the Leased Premises on April 16, 2007. 36. Accordingly, Tenant is in default under Section 15(A)(8) of the Lease. 37. Section 15(D) of the Lease provides that, upon a default by Tenant, Cedar may elect to declare all of the aggregate rent for the remaining balance of the Lease Term, as well as all accrued rent, to be immediately due and payable, and to recover immediately against Tenant all such rent. 38. By letter dated May 11, 2007, Cedar, through its counsel, informed Tenant that it was declaring all such sums immediately due and payable (the "Demand Letter"). A true and correct copy of the Demand Letter is attached hereto as Exhibit "D" and incorporated herein by reference. 39. Tenant has failed to comply with the terms of the Demand Letter, or otherwise cure the aforesaid defaults. 40. As a direct result of Tenant's breach of, and default under, the Lease, Cedar has incurred a broker's commission in the amount of $7,500.00 in connection with Cedar's securing a new tenant for the Leased Premises. f t ~- l 41. As of the date hereof, Cedar has not begun receiving rent from the new tenant referred to in Paragraph 40 above. 42. The Lease contains Confession of Judgment and Warrant of Attorney provisions, which empower any attorney of any court of record to appear for and enter judgment against the Tenant and in favor of Cedar upon a default by Tenant. See Lease, Section 35(A). 43. The Confession of Judgment and Warrant of Attorney provisions contained in the Lease permit confession of judgment in an amount equal to all unpaid obligations thereunder, including without limitation all accrued and unpaid interest charges, rents or other charges payable thereunder, whether by acceleration or otherwise, with costs of suit and a reasonable attorney's commission of fifteen percent (15%). See Lease, Section 35(A). 44. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 45. The Lease has not been assigned by Cedar. 46. Judgment has not been entered on the Lease in any jurisdiction. 47. The actual amounts presently due and payable to Cedar under the Lease are itemized as follows: Base Monthly Rent (March -April): Base Monthly Rent (May -August): Tax Rent (March -August): Common Area Rent (March -August): Management Fee (March -August): Late Charges: Broker's Commission: $4,177.30 (2 months X $2,088.65) $10,443.24 (4 months X $2,610.81) $1,03 8.48 (6 months X $173.08) $1,431.00 (6 months X $238.50) $501.30 (6 months X $83.55) $150.00 $7,500.00 tt Less Amounts from New Tenant: ($0.00) Less Security Deposit: ($2,470.41) Plus Attorney's Commission (15%): $3,415.64 TOTAL $26,186.55 WHEREFORE, Plaintiff, Cedar-Stonehedge, LLC, demands judgment in its favor and against Defendant, Dawn Shughart Realty, LLC, in the amount of $26,186.55 plus accruing interest at a rate of fifteen percent (15%) per annum, costs of suit, attorneys' fees, and such other charges as authorized by the warrant contained in the Lease. COUNT II CONFESSION OF JUDGMENT CEDAR STONEHEDGE. LLC V. DAWN SHUGHART 48. The averments set forth in Paragraphs 1 through 47 are incorporated herein by reference. 49. On or about April 22, 2004, Guarantor executed a Guaranty pursuant to which Guarantor personally guaranteed all of the payments to be made by Tenant under the Lease (the "Guaranty"). A true and correct copy of the Guaranty is attached hereto as Exhibit "E" and incorporated herein by reference. 50. The Guaranty was assigned to Cedar in connection with its purchase of the Stonehedge Square shopping center. 51. Section 8 of the Guaranty provides that all the provisions of the Guaranty shall inure to the benefit of Stonehedge's assigns. 52. Section 2 of the Guaranty provides that Guarantor agreed to pay all sums due to Cedar by Tenant under the Lease, including costs and expenses (including reasonable attorneys' ., fees) incurred by Cedar for collecting or attempting to collect any item of Rent or otherwise enforcing the Lease against Tenant or collecting under or enforcing the Guaranty. 53. Section 11 of the Guaranty provides that Guarantor may be joined in any action against Tenant in connection with the Lease and recovery may be had against Guarantor in such action or in any independent action against the Guarantor. 54. Cedar notified Guarantor of Tenant's default under the Lease in its Demand Letter, and demanded the prompt payment of all sums owing thereunder by either the Tenant or the Guarantor. 55. Guarantor has failed to cure Tenant's defaults under the Lease, as more specifically set forth in Count I above, and has failed to comply with the terms of the Demand Letter. 56. Accordingly, Cedar joins Guarantor in its action against Tenant for sums owed under the Lease. 57. The actual amounts presently due and payable to Cedar under the Lease and Guaranty are itemized as follows: Base Monthly Rent (March -April): Base Monthly Rent (May -August): Tax Rent (March -August): Common Area Rent (March -August): Management Fee (March -August): Late Charges: Broker's Commission: $4,177.30 (2 months X $2,088.65) $10,443.24 (4 months X $2,610.81) $1,038.48 (6 months X $173.08) $1,431.00 (6 months X $238.50) $501.30 (6 months X $83.55) $150.00 $7,500.00 Less Amounts from New Tenant: ($0.00) Less Security Deposit: ($2,470.41) Plus Attorney's Commission (15%): $3,415.64 TOTAL $26,186.55 WHEREFORE, Plaintiff, Cedar-Stonehedge, LLC, demands judgment in its favor and against Defendant, Dawn Shughart, in the amount of $26,186.55 plus accruing interest at a rate of fifteen percent (15%) per annum, costs of suit, attorneys' fees, and such other charges as authorized by the warrant contained in the Lease and guaranteed in the Guaranty. Respectfully submitted, Dated: July 10, 2007 BROADS & SINON LLP By: h 'll T. Moyer, Esquire Kenneth J. Rollins, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for the Defendants, Dawn Shughart Realty, LLC and Dawn Shughart, individually, for the purpose of confessing judgment; Attorneys for the Plaintiff, Cedar-Stonehedge, LLC, for all other purposes VERIFICATION Cami D. Staub, Property Manager of Cedar Shopping Centers, Inc., deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that she makes this verification by her authority and that the facts set forth in the Complaint in Confession of Judgment (Money Judgment) are true and convect to the best of her knowledge, information and belief. 071©laoo~ Date Cam' D. Staub, Property Manager Cedar Shopping Centers, Inc. X ~~~ \_( ' 1 1 1 REVISED 41ZS2t)04 SHC)PP1NG CENTER LEASE LEASINQ LEaa~ coNSr. This lease ("Lease', dated as of MAY 1. 2004, by and between STONEHEDGE CENTER.. LLC ("Landlord"} and DAWN SHUGHART REALTY. LLC ('Tenant}; W17NESSETH: WHEREAS, Landlord and Tenant wish to enter into this Lease on the terms and condttlons hereinafter sat faith; NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants and agreements contained fn this Lease, Landlord and Tenant hereby agree as follows: Tenant herehy (eases the Leased Premises (as hereinafter def(ned) from Landlord and Landlord hereby leases the Leased Premises to Tenant upon, and subJect io, the terms and conditions hereinafter set forth in this Lease. 1. Besic Lease Provisions.and Deffnltlons. In addition to other terms defined in this Lease, the •following terms whenever used in this Lease with the first tatter of each word capitalized shall have Drily the meanings set forth in thts Article, unless such meanthgs are expressly rnodiited, limited ar expanded elsewhere herein. (A) Shooolnc Center Lacatlon: Depicted on Exhibit " " Iccated in Stonehedge Square Carlisle, ~ Site No.: SPAC1075/ (8) Leased Promises: The premises identlfted as Ptot "27" shown hatcFied an Exhtbit "A' {see Article 2). (C) Floor Area: 1.750 square feat {see Article 2). (D) Lease Commencement Date: The date this Lease fs fatly executed by Landlord and Tenant (sea Article 2). (E} ggnt Commencement Date:. J~Q days attar the Lease Commencement Date (see Article 2}. {~ Lease Tartu: Commencing on the Lease Commencement Date and ending at 12 noon en the Expiration Date (sea Article 2). . (G) Exoiratton Date: The last day of the calendar month in which occurs the $'~ anniversary of the day immediately preceding the Rent Commencement Da18 (sae Article 2). (H) Base Reni Schedule - Oricinal Term (sea Article 3}: Lease Annual Monthly Year Base Rent Installment 1 $23,625.00 $1,968.75 2 $24,333.75 ^x2,027.81 3 $25,063.76 $2,088.65 (I) Tax Rent: As provided in Article 5{B). (J) Common Araa Rent: As provided in Article 8{D). (Iq Parcentgge Rent Rate: NIA (L) Security Deposit: $2,470.41 (sea Article 6). (1111) Permitted Use: Residential real estate office and for no other use or purpose. 3enanl is expressly prohibited from operating as a bank, savings and A/2fi12U0A CB C:\sefllcllent\TEMP\Lease (1.49QDD) Dawn Shuphert 1075.dcc {N} Landlord's No((ge P~~dress: See Article 29 (O) Tenants Notlce Address: (O-1)'fenants Bank Account: See Article 3{A) {P} Brokers Tenant's Tefeahon9 Nc.: Tenant's Fax_No.• IenanPs Email Address.: Tenant's Business >~me: Tenant's Contact Person: Gu~rantorfs) scan association or any other tlnancial institution provkiing retell services. 3333 MEW HYDE PARK ROAD SUITE 100 P.o. Box solo NEW HYDE PARK, NEW YORK ii042-D02t} DAWN SHUGHART REALTY, U_C 605 ROxl3URY ROAD NEWVILLE, PA 17241 N ~ f i •'rn+' T Q,3o~.tA.IC.. Account Names Q 3 Cs-i2a A i Number : 5 u.lA-~eo,{.J~,t 1,i.C Rautino Number : ~~ B nk Address • SD ~ cL~ t.1~ LrS~t.. P O"t0~3 NONE ~R fNFORMATIQN ONLV (7'17} 580-713D (717) 776-2321 Dawh & Assaclates Realty Dawn Shughart 805 Roxbury Road Newvllle, PA 17241 The following riders and exhibit{s} are hereby lncorporatad into thls Lease and made a part of this Lease for all purposes: Fi(ders; ~ Rtdsr ° "General Lease Provisions (sat torth in Articles 2 through Z9). Ri r "B° Specmc Lease Provisions (beginning with Articcle 3D}. F~rhl6lt s : "1' - Authorization Agreement icr Direct Debit t' "- Sita Plan Exhibit °B" -Intentionally Deleted F~thibit "B-1"- Contractor's Indemnity Agreement tN WITNESS WHEREOF, the parties heretc have executed this Lease under their respective hands anti seals as of the day and year first above written. Wl'TNESSES TO LANDLORD: LANDLORD: STdNEHEDGE CENTER, LLC By: MART Limbed Partnership, Sole Member ey: KimEast Real Estate Investment Trust, General Partner ~p~ h-T-f! Print Name: (c rat~~~ael J. Flynn _ '/~ , - Title: sesiden ' z..~iu`-- Date Sign . 711Li ~ 2 4128I2U04 CB C:~ealclienATEMP~Lease {t•49Q~Di Dawn Shuphart 1075.doc W 1TNES S TO TENANT: S f uPit.A TENANT: DAWN SHUGHART REALTY LLC sy: ~~ ~ Name• ~ Title: b w u Date Signed: p Federal Tax I.D. No.: - ~- ACKNOWLEDGMENT FOR L1MlTED LIABILITY COMPANY STATE OF t"at1n~~+t~"-~• COUNTY OF `{,Up ~,G~ Before ms, the undersigned, a Notary Public fn and for the State and nun afc asald, an officer duty authorized to take acknowledgments, personally appeared~~P w known to me to be the parson described 1n and who a9 O r.~rnc..Y' of DAWN SNUG TART REALTY LLC, a limited Itabiliry company (the "LLC"), executed the foragcing tnstrument on behalf of the LLC; and he acknowledged bebre ma chat he executed this instrument as a member of the LLC in Warne of and on behalf of the LLC; that this act was done by authority of tha LLC for the uses and purposes set lorth In the instrument; and that the foregoing instrument is the free act and deed of the LLC. . .~ IN W1T ES WHEREOF, I have hereunto sat my hand and affixed my official seal, this O day of .2004, in this State and County. I - My Carnmtssion expires: n~ Notary Public ~~,~ (Notarial 5ea1} ~sw-w uess, Norakv ~ueuc so ~r~ sc~ Pa 4/26/2004 C8 C:1sealdienflTEMPILeasa {t-49000) pawn Shughart 1075.dae r RIDER A THIS R,~DER 1~ 15 ATTACFIED TO AND HEREBY MADE A PART OF THE LEASE (5EE ALSO RIDER B1. 2. Leased Premises. Term and Lease Year. The Leased Premises is deemed to contain an amount of square feet of space equal to the Floor Area. The Lease Term shall comrae_nce oa the Leese Commencement Date. Tenant's duty to pay Rent ahaA cor>IInence on a mcernen a otwithatanding a foregoing, Tenant shall pay the first month's installment of Rent on the executlon hereo[, which amount shaII be applied as a~credtt against such first monthly [nstalhrrent as and when due (and promptly refunded if, for any reason other than Tenant's default, this Lease should be terminated by reason of eon-occurrence of the Lease Commencement DateJ. The Lease Term shall expire without notlce on the Exptratloa Date. On request. Tenant shall promptly deliver to Landlord a statement in recordable farm spetyfping the Rent Commencement Data and the Expiration Date. The Rrat r~aet, Yrwr shall enalrnentx on the Rent Commencement Date and end arl the lest daq of the Commencement Date. Each succeeding Lease Year shall be each successive twelve {32) month period. 3. (A) Hose. ReatK Tenant shall pay Base Rent at the annual rates spedtled in the Base Rent Schedules to monthly instailausits paid in advance on the that d$y of each calendar month hr the amount speciIIed in the Base Rmt Schedule If the Rent Commencerent Date is not the first of the month, the Base Rent for that month shall be prorated. Should arty Lease Year contain mare or less than twelve (12) months, Base Rent and other charges for such Lease Year shall lx appropriately prorated. In additon, Tenant shaII pay Landlord as additlonal rent each month throughout Lease Term induding renewal terms, on the same date that monthly papments of Base Rent is due, an amount equal to four (495) percent of the Hass Rent that is payable for that month, as a management fee to Landlord. All other payments to be made b5* Tenant pursuant to this Lease arc In addltivn to Rase Rent Tenant ahaII p>~y Hess Rent and older Rest to Landlord or its deslgaated agent at the address Landlord designates without Landlord making any demand. However. T~ggj, hereby {C) Late Rent Any Rent ar Security Deposit not paid when due shall bear interest on the payable amount from the date when due untlI paid at the Default Interest Rata (see Article 24(B)); in addition, Tenant shall pap Landlord a Fifty ($50.00) Dollar Isla charge Cor each wcrdue payment. iDl Notwltlrstanding any alleged defense; counterclaim or onset against Rent, Tenant shalE cantluue to pay Landlord all Rant faithfully when due, including during the continuance of any dispute or legal action, sub)ect to reimbursement If directed by the Court. Tenant hereby consents to the entry in arry court action of an order requiring Tenant to make Rent payments during the pendency of the lawsuit All Rent due to Landlord under this Lease shall, unless and to the extent expressly otherwise provided herein, be due acrd payable without any notlce, demand, offset. credit, deductlan or abatement. r _- 1~~ may, ~(~i~~_ _-1-t.,Lr.~..~ii.i~l~M~.~... _M-i2eWG DRItC. ~ Riaiii OL.~/~aTT .... e77.aw~- kls~ -~ ~ .. Fw .wL1~ p~idY4E4YSHttti-CCCSCCCtl~YiSC iL! ~-N 1 14. 1 FI .7 ~T- ~a~. n L]w..1"1 tl~"4~eQ~i= ii.e ..mow ~..t= :t' N• rFi~"Ql3~Fg~-'i@~ _~Mo_- mi'e'o~or d d l.i 1 .l 1 Y tf.s i e.. ~,A Tk~.wf~a~ --- ~ a a o s ®ga ao vs s _ _ _ _ _ . ~ a ~~T A-4 4/20/04 8:48 AAI C:\sm\dlent\7EAIP\Lmr (1-19pOCl amen ShuLhut 1070.tlan C8 Fbrtn <07 (8) Additional Beat Base Reat and all other payments required to be made by Tenant (iricludulg. but not limited to, ~ Tax Rent and Common Area Rent) shall be deemed to be and are fnduded Ln the term "Rent', which shall be duo end payable on demand ar together with the next installment oC Haee Rent, whichever Srst occurs, unless another time is expressly provided for payauat Landlord ahalE have the seine rights and remedies for non-payment oC arty Rmt or any Security Deposit as for anon-payment of Hase Rent. Tenant shall pay to Landlord any tax or Ycense fee measured by Tenant's Rents receivable by Landlord; these taxes shall be paid by Tenant each month with monthly payments of Rent. 1 2 3 4 5 6 7 8 9 Ia 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 27 78 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 58 59 6a 61 62 63 64 65 66 67 68 69 70 71 72 73 74 7J 76 77 78 79 80 eli~dei-~r-t',reas sales-e se>?ri an6-H ~ sal erase-Y~. (D) seare>aents. at#~--iw ems, -a..k "~..,n x,e ..,.,_~.ts....rr..~~,...~..,..~..~\ . ~..w»d ..m..._ ,rte.... ~ -b ,t ,__° '_ ' -m-- s. Tazes (A,1 'Taxes" 'shall 'mean ~ and include: • real 'estate taxes; special end general assessments: water and Sewer rents and charges tnctuding connecdon or hookup charges: gavemmmtlll license and permit fees; charges far public or private casements bmetlttng the Shopping Center, taxes on other areas made available for the common use ar benefit of tenants; and all other governraentaI tmpasltions •and rltarges (extraordinary as waif as ordinary, foreseen and' unforeseen) which aze etcher a Um on the Shopping Center ar which are charged, levied or assessed on, ar imposed to connection with, the use, occupancy or possession of the Shopping Center, and/or which appear as a charge an a tax bill given to Landlord by any oRietal ta:dng authority; and also: taxes. Ucense fees ar other charges measured by the rents receivable by Landlord from khe Shopping Center, occupancy taxes, rent taxes ar similar taxes: interest eai Tax installment payments; and casts. expenses and ices (lacludhlg attorneys' and other expertr' fees} incurred by Landlord in contesting and/or negotiating Taxes with the public authorities (regardless of the outcome}. If any method of taxation prevailing on the date of this Lease Is altered, so as a substitute for the whole or any part of real Mate texts there is levied or assessed a different ldad of tax, the different tax sheIl be deemed included 1n "Taxes". I~owever, 'Taxes" shaIl not include any inheritance, estate, succession, transfer, gilt, franchise or carporatian tax, or nay net income tax, profit tax or capital tax imposed on Landlord. A cape of an oflirsal tax bill with respect to a gaveatmmtal tax or assessment shall be conclusive evidence of the amount of a Tax. if the Leased Premises is located bi Indiana. Ohio, [lUnats or other Jurtsdietion wherein taxes aze billed or aze payable in arrears after they have accrued ar become a Um, thin the taxes that are payable ar became a Len during the calendar year in which the Lease Term to in effect shall be included in the deflnltlon of "Cexea" shared in or payable by Tenant according to the provisions of this Ardcle even though the paymerst thereof relates to a Ascot tax period in whale or in part occurring prior to the commmcemmt of ar alter the end oC the Lease Term. (e) Tax Real As additional Rent for each year of this Luse (herein called 'Tax Rent"}, Tenant shall pay to Landlord, in the manner hereinafter described, the product obtained by muldplying the aggregate amount of aU Taxes payable by Landlord for the then-currtnt calendar year (or other fiscal or accountlrlg year selected by Landlord) by a fracdon ('Tenant's EYacdaa"}, the numerator oC which is the Floor Area of the Leased Premises, and the denominator of which is the M6 J/7A(04 849 A41 C:Wm\e!!mt\'IF1.iP\I.eaae llJBpO~Down ShusLort 1075,doe (~ info, 4ffJ 1 total s4uare foot ground Haar area which is leasable for space (an the first day of the month hs 2 question) inside alt the buildlags of the Shopping Center. Notwithstanding the foregoing, at 3 Landlord's optloa Tcnant'e Fraction may be appropriately adjusted with regard to Tax Rent and/or 4 Laminae Area Rent to exclude fm>su the denominator theretf any land and/or building(sl m the 5 Shopping Center leased to ar occupied by third parties with separate tax lots or parcels !or which they 6 directly ar Indirectly pay fairs and/or who- arc responsible for maintenance of portions of the 7 Common Areas; provided that in such event the Taxes or Common Area expenses paid by such third 8 gartirs shall also be exr3uded in the computation of Taxes and/or Yearly Gammon Area Costs. On 9 the first day of earn month >n advance, Tenant shall pap to Landlord one-hvelfth (1/12th) of Tenant's 10 annual share of Tax Rent, based an landlord's estialates. If after the end of a calendar year (or other 11 aswimting period used by Landlord) the total of the monthly payments by Tenant far the year has 12 exceeded or to less then the aaaval Tau Rmt actually due, then an adjus6nent shaII be made wtth 13 appmpriatc payments to ar repayment by Landlord. If the amount of any Taira payable during the 14 current year shall not yet have been billed by the taxing authority, the monthly Tax Rest they payable IS shall be based on the amount of the cortrsporrding Texea for the lrranedlatcly preceding Tax year, 16 subject to Immediatt adjustment (and payment of the adjusted amount by Tenant} when such Taxes i B are blued ar determined. 19 (C) Other Taws. Ia addition to Tax Rent. Tenant shall pay m the entirety: all taxes 20 attributable to its signs, persana]'praperiy and leasehold Interests; all taxes allocable or attributable 21 to any improvements made by Tenant to the Leased Premises: all occupancy taxes.ar other taxes as 22 its right to accirpy the Leased Pi•Qiiifses; a7I taxes on its' Rent (iricludiag sales taxes on rents If the 23 Leased Premises >s in Florida or in arty other jurisdiction lmpos[ng a tax on rents}; and other taxes imposed an tenants generally. , 26 e. Security peposi#. On Tenant's execution of this Lease, Tenant shall pay the Security 27 Deposit as security for the payment of Rent and Tenant's perlarmance and observance of this Lease. 38 If Tenant defaults under this Lease, ar defaults under any other lease ar agreement between Tenant 29 and Landlord or an afDUate of Landlord, Laadlard may, without prejudice to arty other available 30 remedy, apply the Security Deposit towards cirrWg the default and oompensatlng Landlord for lass or 31 damage arising from the default At the expiration of this Lease, tf Tenant is not in default or 32 otherwise Uable to Landlord, the unapplled balance of the Sccurrty Deposit shall bt returned to 33 Tenant. Tcaent expressly agrees that Tenant shaIl have no right to apply any portion of the Security 34 Depastt against any of Tenant's pbUgationa to pay any Rent hereunder and, if Tenant shall neck to sa 35 _ apply such Security Deposit, Tenant shall on demand pay liquidated damages to Landlord in a sum 35 equal to two {2J times the amount of any such unpaid Rest. If at any time Landlord applies part or all 37 of the Security Deposit, Tenant shall pay to Landlord the amount sa applied, thereby hlaeasiag the 38 amount of the Security Deposit, sa Landlord shall have on hand the full original Security Deposit at 39 alt times. Tf Landlord transfers this Lease and Security Dcpcrsit to a transferee, the transferor shall be 40 released Cram Uability ~vtth respect to the Security Deposit or its return to Teaani+ Tenant sheA look 41 only to such transferee with respect thereto. Tenant shall not mortgage, assign {erccept to connection 42 with an assignment of this Lease by Tenant which Ls otherwise expressly penilitted by the terms of 43 this Leese) or encumber its interest fn the Securtty Deposit, and any attempt to do so shall be void. 44 On any transfer by Tenant of Its Interest ta this Lease, the Security Degoslt shall be deemed 45 transferred to the assignee. In case of Tenant's bankrupkry, reorganization ar other similar 46 protxedtng, the Security Deposit shall be deemed app![ed !]rst to payment of unpaid Reat for periods 47 prior to institution of the proceedings. 48 49 7. Coastractiaa• Canditton of Promises• thvnen:hiu of Iastallatloas ff Tenant enters 50 the Leased Premises before the Lease Commencement Date {hut Tenant shall have na such right 51 except as may be oipressiy provided herein or with Landlord's prior written consent), Tenant shall pay 52 for all utilities need by It and defend, indemnify and hold Landlarri hatadess from aII liability which 53 arises out of Tenant's possession. use or occupancy during that period, and provide Landlord with the 54 insurance referrtd to >n Article 11(H}, and the lndcmn[ty to Article 11(A} shaIl apply and all other 55 provisions of this Lease. shall apply except (unless atheruHse stated herein) the obligation to pay Rent 56 Promptly Collowing the Lease Caarmencarrent Date, Tenant shall (subject to the provisions of Article 57 l0(E) end all other relevant provisions of this Least) llrrhrre and do all other work, lactuding 58 installation of an attractive exterior ltghted sign above its eatrancc {see Article 10 {DJ), m order to 59 prepare the Leased Prelrilses for.btisiness operation, and complete its work, fully staff sad stock its 60 store, and open far business 'prtitrptiy. Prior to aperatiag its ~ business, Tenant shall abtatn a 61 permanent certtAcate of occupancy (ar local equtvaleat) for the Leased Premises from the local 62 govemmen# agency having jurlsdictlon, and obtafa float lien watveis for all work performed by or on 53 behalf of Tenant and forward copies to Landlord. Tenant shaII, at its sale expense, in doing any work. 64 making any installations, or in using, occupying ar conducting business at the Leased Premises, 55 comply with ari present and future laws, regulations, building crocks and/or fire codes applicable to 66 the Leased Pianists ar to Tenant's' use or occiipanry ar business operations, including those that 67 relate to installation, maintenance; upgrading, repair or replacement of sprirrlder systems, and Tenant 68 shall defend, indemnify and hold Landlord harmless from aII losses, damages, cIatrrrs, Uabl3itles, costs 69 and expenses (Including legal fees} arlsirrg out of anp failure to do so. Tenant aeimowledges Landlord 70 has made no representations, and that Tenant has conducted aII inspections it deems necessary 71 {including envlronmentel}, and Tenant accepts the Leased Premises and aIl the equipment, apparatus. 72 plumbing, heating. air canditiontrrg, electric. water. waste dispasaF and other syatears relating thereto 73 and the parking Iot and the other Carnmon Arta of the Shopptrrg Center :4S is". Laadlard !s not 74 obligated with respect to either the Erased Premises or the Shopping Center to make any 75 Improvements. Changes, lnstallattoas, do any work, make any alterations, repairs ar replacements, 76 clean out the Leased Pnmrlaes, obtain any permits, Ueeascs or govemmeatal approvals, or sprnd any 77 money either to put Tenant in possession or to permit Tenant bo open for business, unless Landlord 78 has so agreed expressly !n this Lease, All \vork older than that to be performed by Landlord, if any. 79 shall ire accompUshed by Tenant Unless spectIlcally stated otherwise m tb,1s Lease, it is deemed that 80 Landlord strati have tendered possession of tht Erased Premises to Tenant tmmedlately on the signing Ma 3/78/04 8:40,Nf C:\eai\e~IGt\TFMP~1ase Il-10Qapi Down ShOghatt 1078.doe Ca FaM 48J of this Lease lry both Landlord and Tenant. J:~ccept for signs, merchandise counters ar other easily removable similar trade Hxttltess installed try Trnent at Tenants expense, all alterations, dernratlons, additions and improvements made by Tenant tti the Leased Premises and Including aA heating and air-conditloning units, egwpment and apparatus at the Leased Premises and other 8rchtr'es such as cctling flies and grids, 8ghttng 8xturrs, electric panel boxes, plumbing, bopera, floor and tva1T coverings, alarm systems, lights, toUet fixtures, partitions, doors and utilities shell be deemed attached to the freehold and be Landlord's property. Common Brea. (A) SubJect to subparagraph (C) below, Tenant and its eaiplayees, agents. and customers shell have the non-exclusive right to the use or benefit of the Common Area W the extent and in fire manna reasonably designated Fry Iaadlord. Eyceept ae otherwise specifted 1n this Lease. Landlord agrees to make all necessary repairs grid maintenance to the Conmran Area to keep same in good conditlon, including without limitation sweeping and removal of snow, ice and refuse. and laadsraping maintenance. (B) "Common Area" is hereby defined as the areas, egwpment and facilities of the Shopping Curter or of any other Iand ar property made available by Landlord for the safety, 6eneQt or carrvenlence of tenants ar their employees, svbtexraats, customers or invitees, Including (as AlustraCons and not in limitatioal: parltlag areas, driveways, truck sernceuvays, sidewalks and curbs: entrances and wits from the adjacent streets: trafAc fights, tr~afHc 1slanda, landscaped cress: meter rooms outside ind[vfdual stores: fencEirg; lighting facilltles; agrinkla system serving Iarrdscapcd areas or buildings; sewage system outside tenants' stores; roofs, gutters and dmvaepauts and the exterior of outside walls (excluding storefronts} of buAdings {avlthout implying Tenant may use the roofs ar outside walls}; directional ar safety signs; Landlord's pylon signs (but not individual tenant panels) and sign panels which identify the Shopping Center. Tenant aclaiowIedges that the Common Area may also tie used try omtpatits and/or invitees of properties adJoining the Shopping Center, whether or not owned, leased or managed by Landlord. (C) Landlord reserves the right at any time and from time to time fxi change or reduce or add to fire Common Ares. Common Area shall be under the exclusive conlant and management of Landlord (including the hours that parting area light9 are lopt oa}. Tenant and Its employees shall park theft vehicles only to arses Landlord designates for employee perking; if after sae (1) Malation notice 1s given to Tenant a vlolattan recurs by Tenant or its employees parking vehicles !n other than the employee parking areas, Landlord shall have the right to taw such vehicle at Tenant's cspense and/or levy an assessment against Tenant of Forty ($4D.00] Dollars per day for eaclx vehicle. Tenant shall not permit trudrs or dellvety vehicles used by 1t to be parked w the Gammon Area except where landlord perratts. Landlord may tatpose parking charges by meter or otherw[se, and may close parts of the Common Area for such time necessary in its opinion to prevent a dedlcatton or accrual of rights to other persons, or to dtsraurage non-customer parklag. landlord shalt not ire obligated (although 1t may do so at Its option} to keep the Common Area ilIutahrated to stay extent after 10:00 ]?.M. or on any Sunday ar legal holtdap. (D} Gammon Arne Rent. >n the mariner herdrurfta desraibed, Tenant shell pay its share of 'Yearly Cammoa Area Casts" (haetnafter defined). On the first day of each month in advance, Tenant shall pay to Landlord, as addttioaal Rent (herein called "Gammon Area Rents one- tweifth (1/12th) oCTenants annual share of l,aadiard's estimated Yearly Common Area Costs. based err Landlord's estimates. Tenants annual share shall be dctcradned try multiplying the Yearly Gammon Arm Costs by Tenant's Fracttori Ide9nexl in Article 5(B}}. Far a portion of a caltndar month at the beginning of the Lease Term. Twants Common Area Rent shall ire prorated for that month. (E) "Yearly Common Area Coats" shall mean and include all costs and expenses incurred bi' Landlord during each twelve (12) month pexlad selected by Landlord for repair, replacement painting, maintenance, protection and operatlaa of the Common Area and for insurance carried by Landlord wtth respect tc the Shopping Center, exid insurance=related costs and expenses, lnctuding (by tivay of examples and not In liraltatian) costs or expenses relating to: parking areas. sldewallss and the like; storm wales sad sewage drainage and sanitary control; removal of snow, ice and refuse (tacluding use of tre'sh coinpaetnrs}: gardening and land'ecaping: roof repairs; insuring bulldWgs and improvements and insuring for bodily inJury and Property damage 1fabAlty. including but sot limited to insurance premiums, admtrustratlvc costs, fees, losses within deductibles and/or self-Insured reteatlons for All-Risk Properly Insurance induding Flood and Earthquake, Boller & Machinery, Loss of Rerita,'Crldue;'General and Umbrella llabAity, Workers Compemsatlan. Automobile, acid such other coverages and limits as Landlord in its sole discTetlon deems reasonable in the circumstances, all at the fair premiums (which may ire at the manual rates applicable to the Shopping fester), as ti the 5lrapptag Center was thc'onty propeity awned by Lnndlard (bill aahvlthstandirig the foregoing, such insurance may be obtataed through blanket polides as long as Landlord makes a reasonable allamtlon of premiums to the Shopping Center. which allocation may be based, inter oils, upon a uniform per square Coat rate for all or substantially all property owned bi' Landlord and afilliates); controlling or ellminattng puddling or flooding; llghtlag {including electric cost and meiritenance. repair or replacement of fixtures. poles and replacement of bulbs); depredation of property owned or rental paid for malntenazrex machinery and equipment: taxes or fees payable: try Landlord for any pylons, equipment err other faeAftles; costs of security patrols. directing parting sad policing the Common Arras, compensation to personnel engaged in managing the Common Areas and implementing services related thereto; plus tilteen (1545) percent of the Yearly Gammon Area Casts as a Axed administratlve foe for Landlord. Landlord may cause a»y services such as sweeping, scow remosral, repairs. etc. to be provided by Independent contractors. and the fees paid shaA be part of Yearly Camman Area Costs. M7 a/zeuoa s:an rut C\.ra~cumi~TCtdruasc iiaegacl O"mn sn,rad~c ~me.dx ca tbrm am 1 (F) ARcr the end of each accro}tnting ptriod, Landlord shall furnish a statement of the 2 actual Yearly Common Area Costs. Y the atatemart shows that the aggregate of Tenant's montl9y 3 estimates paid by Tenant during such year was less then Tenant's Common Area Bent payable, 4 Tenant shall pay the balance due to Landlord wlthfn tea (14) daps aftzr rccefpt of the statement; and if 5 the statement shows that the aggregate paid exceeded the Conaaon Arca Rmt payable, Landlord shall 6 either refund the access or credit Tenants next acenifrtg Common Area liatf» Tenants failure to glee 7 Landlord written notice of arty objection to the statement within atnzty 480) days after the statement fs 8 sent shall conatttute a waiver of arty objection or iaqufrp Tenant may have about the statmaart or for 9 any araatiriatlort of Landlord's retards. Tenant ae~rowtedgea Landlord has not made any warranty, 10 agreement err repreaentalian of anq kind as to the actual dollar amount of Yearly Common Area Coats 11 or Tenant s dollar share thereoL L 13 8. Use Premises. 14 i5 (!~ Tenant agrees that the Leased Premises weIl be used and occupied by Tenant 16 and/or any assignees, sublessees ar other occupants (which retermce to assignees, sublessees and 17 other occupants shall not be deemed to give Tenant any rtgiits ro assign or sublet not spediieally set 18 forth 1n this Lease}, err permitted to be used and ocxupied by Tenant or any other such parties only for 19 the Ferniitted Use, and for no other use or purpose. Without limitation of the forrgetag, nn salt or ZO dlspznsing of lottery tickets, other ,gamG'tg tlekets, Hquor, wine or beer shall be permitted. 21 . 22 (B) • Neither Tenant, ear say stockholder awning more than five (646) percatt of Tenant 23 ilTenant is a corporation, nor say person, corporation, partnership, trtrsE, other fl:ra or entity which 24 controls or fs conhalIcd by Tenant or to render. cariman control with Tenant, nor arty subsidiary of 25 Tenant, nor any bitslness organizat[on aiilliated with Tennat (including but eat Iirriltzd to an}r 26 sa-called "parent company" of Tenairt), nor arty guararrWr of this Lease, wUl, directly or fndtrrctly, 37 conduct business at. or sell from, any other placz situated a radius of three (3} miles of the 28 Leased Prexnis mereheadlae.or aervirzs which Tenant or engage ih erry 29 business wlrtch Tenant is ppe~~ to conduct in the Leased Premises, In adrtltinr, ir,; and not +%: 3Q excTusle~n-o7 any remedy available to dtord for breach of the foregoing covenant, so long as this 31 covenant is being breached, Hose Rent shall be increased tmeaty-Rve (2646) 32 percent. 33 573e~r-$Ek~aia~~laalr t.r+~ 1 • • as c r „~ ri._ r...... .r ct- .._. _ r u. 3~ -° 36 i;~~ a2.Fh, t , ~ r .L r aa.++_« •., at._ ........~ .r.. reeve, _ 37 ~1,,,,~,._„,__ _ruL .r_s ._ .~_ . ~ ., 38 39 (C) Tenant's Basiness t7aerattot{y~ Tenant shall keep the Leased Premises open and 40 operatzd contlnuouaty for business not leas than from ~A6 ~ A.M. to 81A8 7:00 p.M. e~aetr-r#ay-far 41 Monday tYlroutth Thevsday i?' 00 A M 5 00 ~ orzfiridav and 9 tlo 42 A.M. to 2:00 P.M. Sah~v. Tenant w1ll continuously operate its business tttercirr wJth diligence and 43 •_ _ ...,~, _ __t.«.r_._a ~_ ~_..~.. ---..-.~,~~,~tuny ats$ca with personnel at the Leased 44 FlGmiaEa_-°„a..t~n ,t,~ a.,>~......,,~...., s. _ , L ~ 'l'enaat Ca fOr 1t9 45 audion, fire, barilQU t ~- aBTZ part: na p cy, going pule of business or similar sale w1U be conducted err advertised; no 46 merchandlae will be kept, displayed or sold or business solldted in the Shopping Centel outside thz 47 Leased Prenyses; no nuisance will be permitted; nothing shall be dons which is unlawful, oflmsivt or 48 contrary to any law, ondirtance, regulation or requirement of any public authority, or which may be 49 in,)urtaus to or adversely affect thz quality of the Leased Premises or the Shopping Cemtzr, no part of 50 the Leased Premises (espedally the eleclsic and pbmtbing systems, the floor and wails) wt1I be 51 overloaded, damaged or defaced; na holes will be drllled in the stone or brickwork or in castrate; ao 52 emission oC any objectionable odors, sounds or vfbratlans will be permitted. Tenant shall procure all 53 licenses and permits required for the use or accupaacy of the Leased Premises and the business being 54 conducted thesetn: the storefront, show windows and signs will be repaired, kept clean. in goad 55 condition and lighted; ail merclsaadise and other property wllt be delivered to or removed liom the 56 Leased Premises only by rile rear entrancz; all garbage, waste and refiise wilt be tszpt stored 57 temporarily inside the Leased Premises and then regularly removed at Tenants expense and. It 58 Landlord opts, only by a contractor designated by Landlord. provided its price la competitive. Tenant 59 wlll comply with the rcquircments pilaw and arty requests of governmeatat agendas or landlord in its 60 rzcyc]!ng program, if any. Tenant will cooperate with Landlord end other tenants at the Shopping 61 Carter to promatloas and advertising, and will become adues-paying member of any merchants' 62 association (or similar argaaization) o{ whi~]i fifty (6046) percent or more of the tenants are mzarbers; 63 or attematively will become a partldpant of and shall pay its prorate shah (based on Tenants relative 64 store size) of arty expenses incurred by a marketing or promotion fiord program now err hereafter 65 established by Landlord. ff any. Tenant shall coarp~y with a31 environmental statutes. zegulatlorts or 66 ordinances now en heretnatty enacted by government authorities, Tenant shalt not. permit the 67 release, p..«1441on, disposal. dumplag err storage of tta72rdau8 wastes (as dzflne:d trt any such lawaJ into 68 the septic tanks, sewers, err othex waste disposal facilities of the 5hopplrig Center or anywhere in the 69 Shagptng Center, err pzrmtt soma to be brought into the Leatsed Premises at any lime, and the 70 pravlsions of this sentencx shall survive the expiration of the Leaser Term Tenant shall keep the 71 Leaned Premises free oC rodents, veratia, Insects sad other pests, and provide regular rsterminator 72 seryte:es at its own expense, and, it Landlord opts, only by an exterrninatar designated by Landlord 73 provided its price i9 competitive. Tenant agrees that nothing w1Il rte done or oaritted which may tither 74 prevent the obtaining by Landlord or other tenants of insurance on anp part of the Shopping Center or 75 oa any personal property thereon, or which may make void or voldabiz any suds insurance, or which 76 may create any extra premiums for any insurance carried by Landlord or other tenants. Tenant will 77 comply with all requirements and recorameridations of Landlord's and Tenant's insurancz eompaities 78 and any rating bureau or simtlaz organization, Including maintaining sad servicing fire extingutshzrs, 79 A-8 4116/04 9:49 Art C1awlrJlmtlT£AMtmx Il-49o0Dy Dawn SduOherl 19Ta.doe C8 Forte 4W ~tD) Tenant agrees to: .`-_~. ~~`....~ ~'°"''•~° T°°°_"'teaAs-ta~eil f4. • o' n ~~.. } m~ L ,r 1, .` crow,-orIIrsacsi.c. ~..__ ~~.:_..'. .^~_ ^-r'CA$Aro-rqi'~ o 's Oo ~"'~oiyMJ _4 Fl,e 7u,....a *+-,.~te~_. not 9611 geode. sallClt 1]lISinGBS Or distribute adveriising matter in the Common Areas: net permit preparation of food or any cootdug, baking or frying In the Leased Premises. Tenant shall keep the sidewalks. curbs and ramps (if arty) adjacent to the Leased Premises (and also all delivery areas. ramps. loading areas and dacim used exclusively by Tenarrq in good sari ante candltlaa and free from snow, ice, and nsbblsh. Tenant will not make or suffer ant waste aC the Leased Premises. Landlord shall not be liable for the act of ant ottrer tenant or person vvho may cause damage to ar who may interfere with Tenants use or occupancy of the Leaned Premises or Tenant's business. 1t3. (A) II e.9 Tenant shall provide and pay for its awn heat, air cond[tWniug, water. gas, electridty, sewer, sprinltltrs arut other utillttes. including appHcatlon depr~its and tnstallatlon charges far meters and for consumption ar use of utiLttca. Tenant shall pay Its share of sewer charges, U any, reasonably determined by Landlord. Tenant shall keep sufHdent heat to prevent the pipes from freezing. IC Tenant receives utilities through a meter which supplies utilities to othes tenants, Tenant will pay to Landlord Tenant's proportlonate share. (based on rtlatlve square feet size of prem[aesl of the total meter r3iarges. if'Teaant raxlves water fives Landlord's well ar other sources made available by landlord {instead of fivm an independent water company}, Tenant shall pay for the tivater, and all costa and expenses Cor the maintenance, repair, replacement and lnstallattan of tanks, electric casts, machinery, apparatus and factlittes shall be Included in Yearly Gammon Area Costs. S~~cle 32 re Utllity Derzpulatlan. (B) I.axtilIordb Reoaba. Weather pennttting and atxbject to Artlcle 25. Landlord shall, within thirty (30] days after receiving written unties from Tcnaat, commence to make repairs, if accessary, to the foundation. the roof, the exterior of the permcter demising walls, and the load-bearing structural columns and beams in the Leased Premises, except that IC those repairs or rt:placEments arise from (i) repairs, hrstallatlona, altraations, or improvements by ar For Tenant ar anyone claiming under Tenant, or (tl) the fault ar misuse of Tenant ar anyone elairatrig under Tenant. or (lit} default under the Lease by Tenant. then Tenant shell make such repaiss ar replacements ar, if Landlord effects, Landlord may perfecta the work Car Tenants account and Tenant shall reimburse Landlord for expenses incurred. Ia detenidrimg Landlord's repair obiigatlons, the expression "roof does not include raatlop heating ar air conditioning units ar other structures or apparatus on the roof serving the Leased Premises, and "extertar of walls" does not Include the storefront, arty glass, windows, window sashes ar frames, doors, door dames ar hardware, trim or closure devices, or any part of the interior side of perimeter walla, ell of which shall be Tenant's duty to repair, maintain, and replace. In any event. Landlord's obltgatlon shaII be only to make the repairs tar which it is hereby obligated, and Landlord shall not be ltab[c far loss of business, loss of sales, lase of profits or for arty consequential damages or far damage to ar lass of personal property, i3rrtures or any lnteriar elements of the Leased Premises which are Tenant's responsibllity >n maintain or repair. (C) Tenant's.Rcnnirs. Subject to Artlclc 10(B), Tenant shaft maintain and make all repairs and altuations of everp Itlnd with respcet to the Leased Premises (includlag necessary replacements) to keep tt in gnod i~nditlan {tncludtng the storefront. glass. signs, ceiltsigs, interior walls, Interior side of perimeter' walls, floor, Qaor coverings, plumbing, electric, heattrrg and air conditioning, sprinklers and lighting lixkures}, and do all required by any Iowa, ordinances ar requirements of public autharitles. From the point they serve the Leased Prctnises exclusively, whether Iocated inside ar outside, Tenant shalt make aA repairs. replacements and alteratiana necessary co maintain !n good condition all lines, apparatus, and equipment relating to utlities (including heating, air conditioning, water, gas, electricity and sewerage}. Tenant shaII maintain a service contract for the regular aesaonaE maintenance oC the heating ventllating and air conditioning f'IiVAC") system servicing the Leased Premtses•with a reputable fiVAC contractor at all times during the I.ease. Addltlonelly, !C arty air condkttorsirig or heating equipment (or other utility equipment) is damaged by vandalism, Qre, lightning or oilier casualty. Teaartt shall repair (and U necessary, replace) the equipment: nohvtthstanding Article 19. Tenant's sale right of recovery shall be against Tenant's insurers for loss or damage to stoclr, furniture and fixtures, equipment. improvements and betterments. (D) ~as• Paini3n2` Dldnlavs No sign, othv advertising or arty athei Eking may be placed by Tenant or anyone clafrning uadrs Tenant an the exterior of the•Leased Premises or on the interior part oC either whrdows ar doors without Landlord's prior written approval, which shaA nak be unreasonably withheld. 'tenant shall not utilize flashing, painted, neon ar moving signs ar lights. Tenant shall not paint. decorate ar mark any part of the exterior. Tenant shall install an exterior lighted sign ar signs in campltance with Landlord's spectilcatlans and keep the siga(s} {which must first be approved by Landlord iri arriting) lit to at least 10:00 P.Iv1. or to•such lattr hazer es requested by Landlord, on all days of theyear. (E} A]terations. No alterations, installations, addltians ar improvements will be made to the Leased Premises by Tenant >,vithaut Landlord's prier written approval. AA lnstatlatlorrs, alterations, additions aisd trirprovements, whethrr by Landlord, Tenant or any other person (except only sign panels and movable trade Br.~trrres installed at Tenant's cost) shall become, when grade, a part oC Landlord's real estate. and on termination of the Lease Term shall be suaendcred with the Leased Premises in good condition. Tenant shall not have the right to remove sign boxes. Tenant shall defend. indemnify and save Landlord harmless fivm and against all r3aims for hijury. loss or damage to person trr property caused by or resulting from doing arty work. For arty work that involves penetration of the roof surface or alteratlons to the sprinlrler syatcm, Tenant shall employ Landlord's contractor. The maintenance of arty portion of the roof affected b3' Tenant's work win be Tenant's responsib111ty, iac~udtng repair of areas of the Shopping Center that might be affected due to water penctnitlan through Tenants roof work. n-a a~:te/ca ~ao.w C:~un\Alrnll'rBLe'\Lea~e Il..tepoo) ]]nNll SdutMrt lorb.doc r9 Form a67 1 (F9 Permits: Liens. All repairs. instellatlons. elteratlons. improvements and removals 2 by Ttnaat ~vtII be done is a good and worl~aiart111rt manner, only after Tenant has procured alt 3 permits. Tenant sha11 comply with a111aws, ordiaaners and regulatlons of pubUe autharittts aad with 4 all Landlord's and Tenant's insurance requirements and with insurance inspection ar raking bureaus; 5 and the work shall not adversely affect the structure of the building. Tenant shall pay promptly when 6 due all charges far labor and materials in coarrtetlon with airy work done lsy ar for Tenant or anyone 7 clatining under Ttnaat. Tenant shall tcmove, by payment, bonding or otherwise, within ten {l0) days 8 after notice, all ]lens placed on the public record or In any way against Landlord's tntcrest or the 9 Shopping Curter resultir:g from suy act aC Tenant or from labor or materiels being alleged #o have 10 been supplied at the request of Tenant ar anyone claiming under Tenant, falling which Landlord may 11 remove such lien and collect alI expenses Incurred from Tenant as additional Rcrrt. Tenant shaIl 12 protect, defend, save harmless and indemnify Landlord and any fee owner of the Shapping Center 13 from and against all losses, claims, liabilities, injwies, acpenses {including IegaI fees). lawsuits and 14 damagrs arising out of arty Hen desacibed above. 15 16 13.. Indemnity: lnsurauce, 17 19 owner of th 8ho TenanCenter ~m andefsnd. save harmless and indemnify Land]orrl and any fee 20 (lncludtn Ie fees} l,~awsuits and d against all losses, claims, HabiHtlts, injuries. expenses g gal omegas of whatever nature eithrx (Il rlalmed to have been caused 21 by or resulted from airy act, omission ar ntgHgence of Tenant or its subteneiits, eoncessionalres, 22 employees, contractors and hrvitees no mater where occurring, ar (i>) occurring in the Leased 23 'Premises except U caused by Landlord's negligence, Landlord shall noE be liable under any 24 circuamstances' for any Injury ar any Iris or damage to or intaterence with arty merchandise, 25 equtprnent, fixtures. furniture, furntslitags ar other peraoaai property or the business operations of 26 Tenant or anyone m the Leased Premises occasioned try (I} the act ~ omteaion of persons occupying 27 other grcailses, ar {H) any deftct, latest ar otherwise, in arty bullding ar the equipment, macldnery, 28 utllttlea, or apparatus, or (Ht) anY brealrage ar leakage oC the roof, walls, floor, pipes or equipment, or 29 (iv) any backing up, seepage ar overflow of water or sewerage, or {v) itaod, rate, snowfall ar other 30 elements ar Acts of God. if Tenant makes shopping carts available, the foregoing indemnity provisions 31 shall apply to rlainrs relating to the shapping carts; and Tenant 8ftall remove all shopping carts from 32 the Common Area, as often as necessary, so tlurt the Corarnon Asca shall remain reasonably free of 33 carts. All shopping carts shall bt stored inside the leased Premises. 34 35 {13) Teaaata Iasataaee. Tenant stroll maintain with itnasretally responsible 36 insurance coarpanies with a Best Rating of not Iess ttrarr A-VII[ itcensed to da business 1n the state 37 where the Leased Premises 1s located: {i} a camatcrcta[ gentrat Hablllty insurance policy vrith respect 3$ to the Leased Premises and eta appurtenances {tnetudtng sign's} naming Landlord as an addttianaf 39 tasured with a Ifmlt of not 3ess than One M1HIan ($1,000,000) Dollars; (H) an umbrella liabWty 40 lnsutance policy with a limit of not less than Five Million ($5,000,000) Dollars, naming Landlord as an 41 addirianal insured; (lit} an inswance policy to cover heating and air-crondttla>riag units agelnst 42 damage for ant hundred [10096} percent replaceaienk cast: {iv} as alt-risk Property insurance policy 43 Insuring all merchandise. teeselrold improvements. furniture, fixtures and other personal property. all 44 at their reglacerrmeat cast; and (v) business Interruption lnsrrrdrice. Tenant shall deHvtr these 45 Insurtsnce paHctes or certl8cakes thtreaf, satisfactory to landlord, issued by the iuaurarux company to 46 Landlord with prcmtums prepaid on the signing of arts Lease and thereafter at least thirty (90) days 47 prior to each expiring policy. Tenant's failure to deliver the polities or certltlcates shall constitute a 49 default. All pulldes of tns++n,nr. required of Tenant shall have terms of not less than out (i}Year. SO 12. Access to Pismires. Landlord shall have the right {but shall not be obligated} to Inter 51 the Leased Premises upon reasonable notice (and in case of emergenry without notice} to inspect ar to S2 show the I.essed Premises t0 graspecrive pdrehasers, mortgagees or tenants, or to male any repairs, 53 alterations, or Improvements, including the installation ar removal of pipes, wines and other rranduits 54 serving other parts of the Shopping Center. Commencing sbc (B} months prior to expttatirm of the SS Lease Tenn, landlord may maintain "Far Rent' signs on the front or any other part of the exterior aC S5 the Leased Premises. Landlord turttier rrservrs to Itself the exclusive right at any time to use the roof, S7 foundation or exterior walls (other than Tenant's storefront) for placing of signs or equipment or Car 58 purpose of additional constructlon. 59 60 13. I~ or Other Casualty; 61 62 {A) Tenant shall glut prompt notice to Landlord in case of fire or atiier damage to the b4 Leased Premises. 65 (B) If (q the Shopping Center buildings are damaged to the extent of amore than 66 hvcniy-five (259b) peretrrt of th+e replacement cask or (u} the I.eascd Preorlses art damaged to the 67 extent of more than ftfty (5046) percent oC the replacement cost, or (iii) the Leased Premises art 68 damaged and Tenant is not operating for business as required by Arttrle 9(C) at the tube the damage 69 occurs, or (tv} the Erased )'remises are damaged and less than one (1} year of the Lease Tcnri remains 70 unexpired at the rime of the fire Pr other casualty; then in any aC such evesrLs, Landlord may termtmrate 71 ails Lease by notlcc to Tenant within ninety {90) days after such event, and on the daft spcdfled >n 72 the notce this Lease shall terminate. If the damage renders the Leased I?remises wholly or partially 73 untenantable, them shall bt a fair and equltable proportionate abatement of eIl Rent during that 75 period. Unless this Lease is terminated as aforesaid, this Lease shall rtmairi 1n eliect. 76 {C) If this Lease is not terrrilnated by landlord, this Lease shall eonttnue in hrII force 77 and effect (Tenant waives say right conferred by arty applicable law tp terminate this Leese based an 78 the datnsge}, and Tenank shall, immedlateIy on notice Crum Landlord, rearave its flxtrsres, other 79 propeity and debris as requtred by Landlord, and than Landlord shall rebuild the Leased Premises fa 80 the condttlon exfsttng when the Leased Premises was originally delivered m Tenant; and on n-mo a~xs~oa e:ae nom C\ew\dleM\7ES1P\laae il-49p001 Aswn 3lw~hortlWtf.dm C8 Fam, a97 I cainptetlon thereof Tenant shall restore TenenYs property and promptly reopen for buaincas. Tenant 2 shall uae the pmceeda of any recovery on Tenant's lrrsrrrsrrce polkdes Cor restoratlon oC improvements 3 made by Tenant to the Leased Prcralses, sad for restoration and/or replacement oC Tenants 4 equipment. trade fixtures and inventory, and to cover any business interruption loss. 5 b (D) The "replacement cost' as used In {H) above shall be determined by a reputable 7 contractor selected by Iaadlord. 8 9 I4. Eaiiaeat ]aomaia. ' IO 11 (Al If the whole of the Leased Premises are taken in carrnectlon with eminent domain, 12 the Lease Tam shall expire when Landlord shall be divested of its title, and Rent shalt be apportloned 13 as aC that date. 14 15 (5) tf only part of the Leased thsmiaes is taken in ca~nnectloa with eminent domain, 16 and the ground Door arts of't11e Leased Pnsnises !s reduced by more than twenty (204b} percent and 17 the part remaining shall not be reasonably adequate for the operation of Tenant's business, landlord 18 err Tenant majr terminate ltris'Lerise bS' gluing the other iratfce wltGia thirty (801 •days after such 19 taking, eifectivt as of the date poasessio» of the talus part shall be required for public uae; and Rent 20 shall be appartlaned as of that date. 21 22 (C) Tenant sheik Hale have any claim for an award based on the lass of its Icaeehold estate. Landlord shall be entlkkd to all damages in conncctlon with eminent domain. Tenant shall 24 execute any instrument r•egrrired by landlord for the rzcavay of damages and to remit to Landlord 25 any damage proceeds recovered, except, however, Tenant may recover for itself damages for movable ~6 trade fixtures which were inatalkd by Tenant, provided Landlord's award is not reduced thereby. _7 28 18, Defaults and Remedies. 29 30 (A) Any one oC the Following shall be a default by Tenant: (1) if Tenant fails to pay 31 Rent, Security Deposit or other mosey, ar to provide a certlScala of insurance or to provide an 32 estoppel Certificate as required 1ryArticle 27 when due, or {Z} !f Tenant fails to perform or observe any 33 agrtemmt or condition on its part to be performed or observed, other than the defaults mentioned to 34 the preceding clauss {1) or in clauses (8} through {8) below, err clTenant defaults undo any other lease 35 or agreement between Tenant and Landlord or an a6llfate of Landlord, err (8) if TcnanYs leasehold 36 interest L5 levied on, attached or taken by any process of law, or (4) if Tenant makes as assignment aC 37 irs property for the benefit of creditors, or (5) iE any bankruptcy, insolvency or rcorgantzation 38 procxeding or araagemeat with eredltors (whether through court err by proposed composition with 39 creditors) is commenced by ar against Tenant, err {t3) Jf a receiver err trustee k appointed for aria oC 40 Tenant's property, or (7} if this Lease sa transferred tb err devalues nn, or the Leased Premises is 41 accupie8 bp. anyone other than Tenant eatcept iC~spedflcally permitted by this Lease, or (8) tC Tenant 42 doses the Leased Premises or asses doing business•at the Leased Premises. 43 44 (H) Lf (f} a default described in subaectlon 15(Fd{1} or !n subsections I5(A}{8) through 45 (71 inckuslvc occurs, err (ii) a default deacrlbed in subsections 15(A}{2) or 15(P.){8) occurs and continues 46 Cor more then tlfteen (I5) days after written notlce Crom Landlord, then fa arty of such cases Landlord 47 or its agent shall have the right to enter the Leased Premises and dispossess Tenant and aA other 48 occupants and their property by legal proceedings, use of reasanabte furze (under the conditions 49 'allowed in Artlde 15{F'} hercoQ or otherwise. Tenant hereby waives any claim it might have for 50 trespass or conversion or other damages tf landlord exesdses surly remedies. Landlord may exercise SI the remedies Just mentioned without ternunatlng this Lease. As an independent cuarulattve right to 52 obtaining possession without terminating this !.ease, Iandtord shall have the right to terrntnatc this 53 Lease by gluing Tenant written nonce spedfytng the day oC termtnatton {which shall be not less than 54 five (5) days from the date of the notice}, on which date this Lease and all oCTenanYs rights will Hesse 55 as a conditional lirattatian,, as !< that date sgedfled iii Landlord's notice was the original date Car 56 cupirattan of this Lease; but in all cases Tenant shall remain ]table as hereinafter provided. 57 58 (C) Nnhulthstanding arty re-entry, dispossession or terartnatlon of the Lease by 59 Landlord, Trnant wall remain liable for damages to Landlord is an amount equal to the aggregate of all 60 Rents and atha charges required to be paid up to the tlrae of such re-entry, dcapassesstoa err 61 tenxrtnatlon, and for Landlord's damages arising out of tha facture of Tenant to observe and geriarm 62 Tenant's covmanfa gird; •ta• additloa, fdr'eiich~znunth~ of the period which would otherwise have 63 eonstltuted the balance of the Lease Term, t sba]! any deflden behveen the monthly 64 instaIIrrrent oC Base Rent lus Rent Co ave 65 amount oC a rents ac collected Lan ord f' anew tenon if 66 any. Tenant will not be ant! a to say sure us. urthermore, enatl wl I be liable to 0 or all 67 the expenses ].andlnrd incurs for. legal fees related to obtaining possession sad making a new lease 68 with another tenant, brokerage commissions in obtaining another tenant; and expenses.lncim'ed 1n 69 putting the Leased Prcadses in good order and preparing for re-rental (together herein referred to as 70 "Reletting Costs'. In additlon. Landlord may reket toe Leased Premises, err say part thereof, for a terra 71 which may be less of more #han the period whid~ would have constituted the balance of the Lease 72 Tenn and may grant reasoriatile concessions err free Wait to a sew tenant. Iaridlard's refusal or future 73 to rclet the Leased Premises to a new tenant shall not release err alFect Tenants liability: and Landlord 74 shall not be liable for failure or refusal to relet, or Iar Catlure to collect rent ands such reletting. ~ 75 #~e-gu~g 76 77 78. ~e er3. 79 .~••~- -u alZB/o4 8'RV 11M C:\oe,\rLmt\IE\tP\te~e t!-.19paai DiWn Shu~lfort lal'S~ae to Fmm S07 1 2 3 4 S 6 7 8 9 10 1I 12 14 15 16 17 18 19 2Q 21. 22 23 74 ZS 26 27 29 ~0 32 33 36 38 39 46 42 43 44 45 46 47 49 50 51 52 54 56 57 58 59 60 61 62 63 64 65 fib 67 68 69 70 7I 72 73 75 76 7$ St) (n) in auy rase where Landlord shall Have the right to hold Tenant ltabk monthly. Landlord may beet to der]are all the aggregate Rent for the remaining balance of the Lease Term, as well as all aaaved Rent, to be immediately due and payable, and to recover immediately against Tenant all such Rest (far lass of a bargain and not as a penalty). (G) landlord and Tenastt mutually agree that tbty hereby valve heat by July in any action, proceeding ar counterrlatai brought by either against the other es to any matters aiisfrtg out of or 1n any way connected with this Leese, or their relatlanshtp as Landlord and Tenant, or Tenants use ar occupancy. Tenant agrees that no eotmterdaim or sctotL viii be interposed in any action by tandlard based on non-payment of Rent, even tf such counterclaim or setoff is based on Landlord's alleged breach of a duty to repair or alleged breach of quiet enjoyment. ar any other allegatlan. 18: Snbosdiaatioa. [A} This Lease is aad shall be subject and subordinate to (!J aII ground or under leases and ell mortgages ar other security lnsirtiments now or hereafter affedirig such leases, and (g} aII mortgages or other security instruments now or hereafter aSecting the fee title of the 5ttopptrsg Center, and (iii) all rencwrils, modt8catiaas, consoltdatlona, seplacemersts and cxtensiotrs of any such ground or underlylxsg teases and mortgages, This clause slrall be self-operative end na further tnstrssmmt of ssibardinatioa shall be required by airy ground ar tsnderlyfng lessee or by arty mortgagee. In caaSrmatlon of such subordinattan, Tenant agrees to execute gramptiy any tnstrumtxst that Laadlard may request. However, at the option of Landlord ar such mortgagee yr ground tesaar ar secured party, this Lease steal! he garamount iti such mortgage or ground or uaderlykrg lease or other security instr,ament. !B) ff Landlord transfers its interest is the Leased Premises, or proceedings era brought for foreclosure of arty such mactgage or tn•cese of sale to tied thereat or ttxastaatltin of any such ground or underlying lease. Tenant shall; tf requested; attarn to the tranafe:ree, mortgagee, ground or underlying lessor end deliver, without charge, Instruments aeknowledging the attarnment (C) Provided Tenant was given notice to writing of the names and addresses to which the notlces should ]x sent, Tenant shall glue prompt writtt:n notice of any default by Landlord to the holder of all mortgages, ground ar underlying leases and security holders i< the default is such as to glue Tenant a right to (t) tcrnniisate this Lease, or (11) reduce the Rents or arty other sums reserved, ar (utl credit or offset any amounts agaiast Beats. flay mortgagee, ground lessor or see~uity holder shall have the right to cure landlord's default viithin sixty (5U)' days alter redelpt of Tenant s notice; and no such rights ar remedies shall be ercerdsed by Tenant untlI the expiration of said sixty (soJ days (or such addttlossal time reasonably required to cure such default). 17. 'Waiver of ~nbtmtrntlon. Landlord and Tenant hereby release the other sad all other persons chiming under it Pram any and alt uabuity for loss or damage caused by any casualty, even if the casualty !s brought shout by the Cault or negBgeace of the other or of any persons chiming under the other. Tenank and Landlord tv1II cause their respectlve Insurance companies to endorse their respective insurance polldes to permit a waiver of subrogatlon. IB. A65IGI~NT OR &IFHLETTING. Tenant shall not assign, mortgage, pledge, or otherwise transfer or encumber this Leese ar arty interest therein, either voluntarily or by operation of ]aw or otherwise; or t#ublet the whale ar oily part of ilia [.eased°Presntsas, or permit occupancy by anyone else, widrout obfainiag on tech ocpsioa Landlord's prior written caasent, which consent Landlord may deny, regardless of commercial reasonableness. In say assignment the assignee must assume this Lease to writing on Landlord's form. Any request for•Iandlord's cossscnt to assignment or subletting shall be accompanied by payment of laadlord's reasonable edministrative and attorneys' fees relating thereto. Nottvithstandtng art assignment or subletting or occupancy of the Leased Premises by arsyone other than Tenant, Tenant shall not be released {nor shall arty of Tenant's canstltuents, Partners, or metnbcra be released) from arty obligations, ltabllitles ar covenants under this Lease and shag cantiaue to remain responalble. Landlord• shalt Crave the right to collect Rent from any assignee, subtenant or other asxupaat without releasing Tenant or waiving anp right against Tenant for its default utrdcr'this Article aad without accxptlng the payor as a persnittcd tenant Any transfer of {i} any corporate stack of• iii) any partnership interest ire; ar (il!) any membership interest in Tenant, or a merger, tmnsa!ldatlon or Hquidatlon of ar by Tenant, either voluntarlly or by aperatlan of law, shall be deenmd an' assignment and• require Landlord's consent as stated above. Under arty dreumstances, Landlord shall not be liable for erry money damages to Tenant ar Teaani's proposed assigace, transferee or subtenant for refusal to canstait to any assignment or transfer of this Lease ar transfer of Tenant's corporate stodr ar solo of Tenants business, or for refusal to consent to any subletting; Tenant's sale remedy Bha1E be specific perforasarsee. ~t-as _e~ _ ..t.,n_ L.. ._._„ t~ ~~~ also/aa o:mJwt e.tn C~.ea4i~rne~rsur~tr~ue o~aepaai sawn sb„gn.n urre.aa ca troem ari (F) Tenant waives service of aotlce of intentloA to re-enter or institute legal ptoceedin'gs to that end. Tenant waives arty rights of redemptlon as to the Leased Praalses granted by ariy Present or future laws. The words 7e-enter" and "re-entry" are not reshicted to their technical legal meaning. NotwFthstanding the faregatag, Landlord may use force to diaposscss Tenant only is the following situations: (t) it is gurauant to law or a court order, judgment to decree: or W) Tenant has not beers operating Its business at the Leased Prcrrttst:s agen W the public as rtgtsfrerl by Article 9(CJ at this Lease for moro thari seven (71 business days, 19. Cgrrnader sad ~o t„v Over fE,l At the expiraton oC saoaer termination of the tenanry hereby created, Tenant stufU surretlder the Leased Prendaes in the same caadillon as the leased Premtaes were in upon delivery of possession thereof to Tenant, reasonable wear and tear excepted, and damage by unavoidable casualty excepted to the extort that the same 1.s covered by Landlord's Property insurance pulley. and Tenant shall surrender all keys Cor the Leased premises to Landlord grid shall inform Landlord of all combinatlans an locJra, safes and vaults, tf any. In the Leased 1?rendaes. Prim' to the expiration or soontr termtnatlon of arts Lease. Tenant shaII remove airy and all trade fixtures, equipment and other unattached items which Tenant may have installed, stored or left in the Leased Premises or elsewhere is the Shopping Center, and Tenant shall not remove any plumbing or elecfrlcal fixtures ar equipment. heating or air conditioning equipment, floor crnrcrings [includlag but not limited to wall-to-wall carpettng}, walls or callings, all of which shaft be deemed m constltutt a part oC the freehold and/or leasehold interest of Landlord, nor shall Tenant remove any fixtures ar machinery that were turnishtd ar paid for by Landlord (whether taitlaliy installed or replaced). The Leased Premises ahaA be left in a broom-eleaa condition. If Tenant shall Call to removt Its trade tfxtirres or other property as provided !n this ArYcte l9, such fixtuues and other properEy not removed by Tenant shall be deemed abandoned by Tenant end at the aptlon of Landlord shall become the property of Landlord, or at Landlord's option may be removed by landlord at Tenant's expense, or placed in storage at Tenants expense, or sold or otherlvlse disposed af, to which avant the proceeds oC such sale or other disposition shall belong to l.arrdlard. In the event Tenant does not make arty repairs as required by this Article 19(A), Tenant shall be liable for and agnxs to pay Landlord's costs and expenses in making such repairs. Tenant's abllgatlons and covenants under this Artcle 19(AJ shall survfve.the expiraton or termination of this Least. • (S) If Tenant or anyone claiming under Tenant remains in possession of the Leased Premises aftrt Uie expiratoa of the Lease Term, that person shall be a tenant at sufferance; and during such holding over, Here Rent s1saI1 be twice the rate which was in tfiect Immediately prior to the Lease Ttrm expiration, which Landlord may collect without admission that Tenant's state fs more than a tenancy at sufferance, and all the othc. provisions of this Lease shall apply insofaz as the same are applicable to a tenancy at sufferance. 20. No. Waivers by Landlord. Na waiver .by Landlord of any breach by Tenant or requirement of obtaining landlord's c6nsrnt shall be deemed a waiver of any other provision of this Lease or auy subsequent breach of the same provision or a waiver of any necessity for further consort. No payment by Tenant or acceptance by landlord of a lesser azaount than due from Tenant shall be deemed tn• be arryt3drrg buE payment 'ori account, and Teirarit'r# paymeat'af a lesser amount with a statement that the lesser amount is payment !a Ivff shall not be deemed an acrord and satlsfactlon. Landlord may accept the payment without preJudice to recover the balance due or pursue airy other remedy. Landlord may accept payments even after default by Tenant without pre,Judlce to subsequent or concurrent rights or remedies available to Landlord under this Lease, at law or in equity. Any acceptance by i,m•Idlocd of arty paymrnt by Tenant after terminatlon or expiraton aC the Lease Term shall not constitute an acceptance of Rmt but rathtr a payment to Landlord on account of Tenant's use and occupancy of the Leased PrtmEses, All rights and remedies which L,aridlord may have under this Lease, at law or in equity shall be distinct, separate and cumulatlve and shell not be darned inconsistent with each other, and any or aII of such rights and remedies maybe exercised ak the same lima. 21. $q)es and lie tforis. Tenant shall observe and comply with, and cause fts employees, agents, subtenants and croncesstonairts, and their employees and agents, to observe and comply with all reasonable rules and regulations promulgated by Laadlard by notice to Tenant; and such rules and regulations 'shall have the same fonx and effect as if origtrially contained in this Lease. 22. Idailnre of Perform~rlce by Tenant. TY Tenant shall default under this Lease, Landlord may, at its election, Immediately •or at any'tiine thereafter; without waiving any Gaim for breach of agreement, and without aotlce to Tenant, cure such default or defaults for the amount of Tenant, and the cast to Landlord thereof plus Interest at the Detault Interest Bate shall be deemed to be additions! Rent and payable on demand: Tenant shall pay all reasonable attorneys' fees, costs 'and expenses incurred by landlord in enforcing the provisions of this Lease, suing to collect Rent or to recover possession of the Leased Premises, whethcx the lawsuit or other action was commenced by landlord or by Tenant. 23. Limltatlons ob E,aadtord's Liability. (A) "T'rnant" includes the persons named expressly as Tenant and its transferees. successors and assigns. Dept as otherwise prrnrided irl the next sentence, the agreements end candltlons contained in this Lease shall ire bfading on and Inure to the benefit of the partles hereto and their transferees. legal representatives: successors and assigns: "Landlord" 7++~+*+a only the then- owner oC the lessor's Interest in this Lease, and in the event of a transfer by Izndlord of its interest to this Lease, the transferor shall be automatically released from all liability end oblfgatioas as Landlord subsequent to the transfer. n•ra a/as/oa e,ae Mc C;lw,ldlml\TF2~1(~\Ltaac 11•i90aD1 oo~m ShuQhut 1fff6.d4c Ca ~ pbrm 497 (g} Natwithsimmding anything to the contrary, Tenant agrees tt wIII look solely to Landlord's estate 1n the Shopping Center as the sole asset for collection of any nlwlm, Judgment or damages or enforcaaent of arty other judicial process requiting payment of money. Tenant agrees that no other assets of Landlord shall be subject to levy, executlon or other procedures to satlsfy Tenants rights or renaedles. 24. MiscelIaaegns Provisions. (A,) This Lease contains the entlre agreemrnt.betwccn the parties. No oral statements or npressentations or written inatker not contained >n this Lease shall have any force trr effect This Lease carmot be modified or terminated orally, but only by a writlag signed by Landlord and Tenant, except for a termination expressly penmitted by this Leases If more thaw one party exerartea this Lease as 'Tenant ,the ltab>fity of all sirch signatories shall be Joint and several. Neither this Lease nor any memorandum. assignment or memorandum of assignment thereof shall be rerxrrded sn say puiilic ra:ards without Landlord's prior wrttten rnnsen#. Arty obligation of any person shall be performed at its sale cost sad expense unl'6R a contrary 1IIteat 15 expressly stated herein. Each prOW6I0A of this I.eaae shaII be valid and enforced to the fullest extent permitted by law. Howevex, iF arty provision or the apptieattoa'thereof to any peisoa or circumstance shall to anjr extent be declared by a taint to be lrnalld, the remainder of this Lease shall not be affected. If Tenant is not an individual, the person signing this document on behalf of Tenant represents (by such signature) that he or she has been duly autlrarized by Tenant to execute this doctmient and that such signature creates a binding obligaton of Tenant. (B) lire term "Default Jatcrest Rate" as used m this Leese shag mean ~ (154b) Fervent per annum ar the eneximum interest raft permitted by law, whichever is lower. ~ ~ (G) Natwlth$tanding arty other provision in this Lease, Landlord to Its absolute dlsesetton ahali have the optfon at arty time to relocate Tenant from Wes Leased Premises (the "Present Premises' into other premises >n the Shopping C.entcr (the 'New Premises'7. Landlord shall give Tenant at least Cony-Bve (45) days notice of the apprmdmate dots Tenant is to move to the New Premises. Landlord shall prepare the Near Freralses to the same extort that Laadlore prepared the Present Premises. The New Premises will have at least the same amount of square foot area as fire Present Premises. Landlord shall pay for mmdrsg Tenant's krventory, fixtures, equtpment and storefront sign to the Nero Premises. Tenant shall cooperate with Landlord. Tenant will move its business aperatlons to the New PremL9es within forty-eight (4$) hours after Landlord notifies Tenant that it has substantieUy coerrpleted its preparation of the Neav Premises. The New Premises will become the Leased Prcndsea (instead of the Presort Premises) and the Rent {including all of Tenants other monetary obllgatloas to Landlord under the Lease) and all the other terms and provisions of this lease shall be tnrnsferred to and continue to apply, wlttrou# Interruption, to the New Premlaes from and liter the date Tenant is required to move pursuant to this Artlclc. (E) The provisions of this Lease shall be construed, in all nxpect9, without reference to any rule or canon requiring or permitting the construetlon of provisions elf documents against the interest of the party responsible Car the drafting of the same, it being the intention and agreemrcnt of the parties that this Leese be conclusively deemed to be the joint product of both parties and their counsel. Furthermore, the parties agree that this Lease may be executed with revision markings (so- calted blaaldining'} appearing in the exceuttan copy (Ge.. deleted text is overshickcn sad newly- inserted trxt Is underscored or in boldface); each "bkicklintng" shall not be accorded say significance or taken Into account 1xr airy way; this Lease shall be construed for all purposes as ff all ovecsizicken text were deleted and never included irr this Lease and ell bold or underscored text were not bold or underscored. .. [F) Quiet Errlavmcnt Landlord covenants chat, upon Tenant's payment of the Rent required hereunder and its petformancc of all of the terms and conditions oC the Lease, Tenants. peaceful and quiet rnjoyraetrt of the teased Premises shall not be disturbed try Landlord or aayonc properly ciattrdng by, through or under Landlord. Natwithstaading the foregoing, this pcavtsion is subject to all mortgages, encumbrances, easements and underlying leases to whie3r this Lease maybe or bernmc subordinate n-14 1/79/04 &90 AM C:\"m\dlmt\1FJ1eT\traaa IIaO(aOP) Ganm SAU~hsrc 107E.doe Ca rmm 907 [D) The submission of this Lease to Tenant for review or Tenants signature does not wnstltute a reservation of, or opttein for, the Leased Prerritaes: or a reprrsrntatlon that the business terms have been approved by executive ofilcas of Landlord or Landlord's Board of Directors. Thts Lease shall become efiextlve as a lease or agreement only upon mutual eoceeutlon and delivery. A lease which is not fully executed ariil'd"eltvered'cannot be enfotitxt is arty marints and carlitot glue rise to any rights elr remedies. 28. IInavoidable Ilelavs. Wharc either party hereto is required fa do any act but is untimely is compleftag the act, the time attributable dtnxtly to delays caused by an Act of God, hurricane, toniado, rain. snow. cold ar other weather, war, civil camtttotion, [ire or other casualty, labor diiHcultles, or shortages of labor. materials or equipment. government regulations or other causes beyond such party's reasonable control shall not be counted in deteanintng the time during which such act is to ba completed, let anY case where work is to be paid for out of insurance proceeds or condamnatloa awards, due alknvantx ehaA be made for delays in the collection of such proceeds and awards. The provlsiods of thle Article shall not be applicable at all to excuse ar permit delay of the lima for Tenant to pay Rent or other money or to obtffin and malatain insurance polldes. If landlord is unable to deliver the Leased Premises by the end of one (1) year after Landlord's execntlon of this Lease, than either Party may terminate thfs Lease by giving thirty (30] days written notice to tht: other at any time prior to leader. 26. sole Brakes. Tenant represeatr that no broker, finder, or other person entitled to compensation !other than the Sinker ldent!lfed in Article 1) was Involved in thLs Lease, and that no conversations ar prior negotlatlona ware had with any broker, finder or other possible claimant other than the Broker cancetning the renting of the Leased Premises. Tenant shall defend, indemnify end hold Landlord harmless agatnet 'any' clatrns for compensation {including legal foes iricurred by Landlord) arising out of any araversattons or negotlations had by Tenant with anyone older than the Broken 27. Eatogpel Cartiflcates. From time to time, within ten (10) days following written notice, Tenant.shall deliver to Landlord a signed and ar3mowledged wellies statement certlfyii7g: the date of this Lease and thei this Lease Is is foil force end effect and unmodified except as stated; the monthly Base Rant payable during the Lease Term; the date to which the Rent and other payments have been paid; whether Laad[ord tr in default, ar if there are arly offsets, defcnsas, or counterclaims claimed by Tenant, and 1E a default, o6set, defense, or rnunterclaim is chimed, spectfying the spedtle nature and default: and stating arty add[tlonal mattes requested hY Landlord ~ a mortgagee. 28. Sfloavin@ Crater. ChanEes. Natther ~1431t.Q nor this Lease is a warranty by Landlord that the Shopping Center wiII remain as shown. Landlord may relocate, increase, reduce or athenvise c}iange the number. dimensions. or locatlons of the parking areas. drives, exits, entrances. walks and other Cathmon Areas ar bufirlliigs. If Landlord desires tiD moden~ilxe the faeside of the Shopping Center, Tenant ahaIl, upon.request of Landlord, instaII a nea* exterior sign and improve its storetivrlt, following the design of Landlord's architect landlord reserves the right to use portions of the Common Area for construction-related acttattles and to erect tempamry scaifaIdtng is front of the Leased Premises. Tenant walvas any claim for rent abatement, loss of business or damages arising out of any reasonable and temporary lnramaifence allegedly expertcaced by Tenant during the course of any alteration, improvement or modemizatton, or during any repair activittes in which Landlord ig engaged. 29. Notices. AIl notlecs intended to impose liablllty on the oilier party or exercise a right f'Nottce'q shall be >n roiling and serf by`certlfied or registered mail, return'recefpt requested. or delivered b3' a nationally recognized overnight courier (such as Federal Express or UPS} and 1n order to be effective a copy of any notce of Landlord's default must be sent by Tenant to the holders of any mortgages, gmlleid feasts ~ or sedurtty littet'eestr as per Article 16(C). Notices shglI be sent to the address stt forth !n Article 1 ar to such other address as may be designated by notice. Nottcxs shall be effectlve the day otter the notice was sent, or >f bq courier dcltvery, the day de$vesed. The purported giving of natiex or exerdse by Tenant of arty right, option or privilege by say means other than written notice given in'atriet complfanex with this Article shall be null, void sad of no force or effect, even l<airy sorb other means of commurueatfan~ succeeds 1n conveying actual notice. If courier delivery is refused or not able to be made, the day delivery was first attempted shall be deemed the delivery data (END OF RIDER A} BEE RID~F. $B A1"TACE~D HERETp AMD HEREBY MARE A PART O,F Tffis LEASE. A•e8 orals a:4o nst Glam~e9mt\7EAIfhGemei!-1900a1>~~'•~ughert loTS.doe CB Fo,m 497 RIDER "B'• 30. Notwithstanding anything provided herein, if there is any discrepancy between Rider °A" and Rider "13', Rider °B° shall prevail. 31. Sign Criter}a -.Reference to Article 10(,Q}. (A) Tenant shall be required to design and install at its sole cost and expense an 1llumtnatad Individual change! letter sign on the exterior face of the Tenant's storefront. Tenant must obtain Landlord's written approval of its sign design drawings prior to the fabrloaUtin and installation of Tenant's sign. The drawings must Include the dimensions, color, style and types of materials to be used. The sign shall be placed in the designated area In suoh a manner that it does not extend above the parapet or facade and does net exceed 213 of Tenant's storefront. The plans and permits for, and the installation of, Tenant's sign shall all be at Tenant's sole cost and expense. The sign shall be governed by all applicable provisions of this Lease, including, but not limited to, Tenant's duty to repair (Article 10) and insure (Article 11) the sign. The sign shall be subject to all govemritantal authorities' codas and restrictions. (B) Upon the expiration or sooner terrninailon of this Lassa, Tenant shall remove its sign and restore the sign band/fascis to its original condkion. 32. Utility Deregulation. (A) Landlord Contrgls Selection. Landlord and Tenant acknowledge that new utility deregulation may allow Landlord to change electric service providers in the future. If such deregulation goes Irrto effect, Landlord shall have the right at any time and from Ume to time during the Lease Term to either (i) contract for service from a different company or companies providing electricity service (eaoh such company shalt hereinafter be referred to as an "Alternate Service Provider") or Qt) continue to contract for service from the present electric udtlty company (the "Electrio Servloe Provide. In the event that the entire Shopping Center is required to be serviced by the Alternate Service Provider, Tenant agrees to contract for service from the Alternate Service Provider. (B) Tenant Shall Gtve Landlord Access. Tenant shall cooperate wi#h Landlord, the Eleotric Servioe Provider, and any Alternate Service Provider, at alt times as reasonably necessary, and allow the foregoing to have reasonable access to any and aA electric lines, feeders, risers, wiring, and any other machinery within the Leased Premises. (C) Landlord Not Resoonsible fo'r Interruotlon of Service. Landlord she!! not be liable or responsible for any lost damage, or expense that Tenant may sustain or incur by reason of any change, failure, interference, disruption, or defect In the supply or character of the electric energy furnished to the L' eased Premises,' or if the quantity or character of the elecMc energy supplied by the Eiectrlc Service Provider or any Alternate Service Provider is no longer available or suitable for Tenant's requirements, and no such change;. failure; defecf, unavailability, or unsuitability shall constitute an actual or constructive eviction, In whale or in.pan, or entitle Tenant to any abatement, ar dtinlnutlon Hof rent,. or.reileve Tenant from ahy..at its obligations tinder ilia Lease. ~ ~ ~ ' 33. HVAC. Notwithstanding anything cohtained in Arflcles 7 and 10, if: i) the HVAC system falls bo operate during the ten (10) days following the date Landlord tenders the Leased Premises to Tenant; ii) the failure is net due to an act or omission of Tenant or its agents, employees or contractors; and iii} Landlord receives written notice from Tenant within three days of the failure, Landlord shall restore the system to operating condition. After the ten {10) day' period, Tenant sha(I have full ~responsibllity with respect to the HVAC system. 34. PLANS AND SPECIFiCATiONS. (A) In the event Tenant desires to perform any work, or make any alterations ar modifications in and to the Leased Premises (other than fnstaliation of shelves, painting and carpeting, and other similar interior noti=structural minor cosmetic changes), or in the event Tenant desires to perfomt any work In the Leased Premises which requires the submittal of plans to the municipality and/or requires municipal permits and approvals, Tenant shall submit to Landlord, for Landlord's written approval the following items (hereinafter collectively referred to as °Required Items"): 19 4/28!2004 Ca C:~sealcDen4TEMPIL©ase (1-49~Oa) Caws Shuphort 5075.dac RiDEA "B" 1. Complete detal(ed drawings and specifications in sufficient detail for Tenant to obtain all necessary bullding permits {hereinafter collectively referred to as "Plans"} for all the work to be done by Tenant to the Leased Premises. Each of Tenant's Plans submissions shalt 1nciUde two sets of full-size construction drawings and specifications, as well as one set of computerized constriction drawings saved on 3.5" diskettes in ,DWG or .DXF file format. 2. A contractor's "Payment and Performance Bond" in favor of Landlord as obligee, in #omt approved by Landlord, issued by a surety company satisfactory to Landlord, guaranteeing compfetlon of Tenant's work in accordance with the Pians free of liens and security agreements. 3. A comprehens(ve general liability (nsurance policy from Tenant's contractor's insurer (with a rating of not less than A-B} naming landlord as additional insured for at least $3,000,000 combined single Ilmft far bodily Injury and property damage and contractor's Workers' Compensattan and Occupations! Disease insurance with statutory limits and employer's Aablfity with a limit of at least $1,000,000. 4. The general contractors written indemnity agreement in the form attached hereto as Exhibit- "B-i" that the contractor shall indemnify, defend, save and hold harmless Landlord, 1#s mortgagee, agents, smpioyees and assigns, from ail Ilabilitles, claims, losses, Nens, damages and suits of whatsoever nature far personal injury, death or property damage alleged to arise out of the work performed under the contract, whether by contractor or by any subcontractor, and whether asserted against Landlord or contractor. (B} Landlord shalt Inform Tenant of any objections to the Required Items within thirty {30) days after receipt of all such ftems: It Tenant falls to deliver any of the Required items timely, then Landlord shall have the right to tem'rlnate this Lease and retain the Tenant's entire security deposit as liquids#ed damages. Furthermore, Landlord shall have na obligation to review Tenant's Plans unless and until Landlord is in receipt of all Required items. Tenant, within fifteen (15) days of receiving Landlord's objections to the Required items, shat! deliver to Landlord corrected ,Required Items, which Landlord shaft accept or reject within. the next fifteen (#s} days. ~ .. .. (C) Tenant must oMain Landlord's written approval of all Required items .prior to commencing any of its work at the Leased Premises. Landlord's approval of Tenant's Pians shell not constitute an affirmation by Landlord that they conform to law or impose any liab{Ilty_on Landlord. Upon .Landlord's approval of the Required Items Tenant shall .immediately apply for all permits necessary for its work, After the permits are issued and Landlord has completed the work, if any, that it has specifically agieed iri this lease to do, Tenant shall'promptly commence and complete Tenant's work in conformity with the Plans, bullding department requirements and a!I relevant laws end regulations. (D) Tenant shall comply with all legal requirements during'its work•and, when completed, Tenant's work must. comply with all laws, ordlpances, regulations or orders of public authority, and with the requirements of the appropriate Fre Insurance Rating Organlzatlan and Landlord's insurance company. Prior to opening for business, Tenant shall obtain and deliver to Landlord: (a) Tenant's'aftidavit that al{ work, labor and materials have been paid for, (b) final Ilan waivers, as well as paid invoices or statemen#s, from all contractors and subcontractors who performed work at the Leased Premises and all ma#erlalmen and suppliers who provided materials and/or equiprTrent'used ln~ canriection with Tenant's work at the Leased Premises, and (c) a copy of the certfficate of occupancy {or its local equivalent} far the Leased Premises. tf a temporary Certificate•.of• Occupancy,ls.issued, Tenant shag deliver, a.copy of #hat document to Landlord and then, • upon issuance of a permanent Certificate of Occupancy, immediately forward a copy of it to landlord. (E) if Landlord or its representative inspects the leased Premises and determines that Tenant's work. is not being done in accordance with the approved Pians, Tenant shall correct any deflcierrcies ar omissions Immadfatefy. (~ Tenant shall not permit. any mechanic's •or other Ifen to be flied either against the Leased Premises ar the Shopping Center or Tenant's leasehold interest by reason of work, ans~zooa cs c:~es~ie„n~M~.eese (~-aeaoo) orwn snu~,u~t ya~s.doc RIDER "B'• Tabor, services or materials supplied. if any Ilan is filed, Tenant shall, within ten (10} days after notice of the fllfng;•cause it to be discharged of record, failing which Landlord, in addition to any other right ar remedy, may {but shall not be obligated to) discharge such Ilan by deposit, bonding proceedings or by payment of the claimed amount for Tenant's account. Any amounts so paid, together with Interest at the Defiault Interest Rate from the date of payment, shall be paid by Tenant to Landlord on demand as additions( Rent. Nothing herein shell be construed as the consent or request of Landlord to any contractor, subcontractor, laborer or materlalman to perform work or furnish materials. Furthermore; nothing herein shall give Tenant the authority to contract for or permit the rendering of any service Dr furnishing of any material that could give rEse to the filing of shy Ileh. (G) Tenant shall require its contractor to famish to hofh Tenant and landlord an completion of the work a guaranty, far a period of one (1) year from fins( completion of ail work, that all work and materiels will be free from all defects and that all apparatus (e.g., air=conditioning equipment) will develop capacities and characteristics specified In the approved Plans upon use, and that whenever within one (1) year of the final acceptance of the work, contractor Is notified in writing by either Landlord or Tenant that any equipment, material or workmanship Is defective or in some way does riot mast specificaFions, contractor shall immediately replace, repair or otherwise correct the defect or deficienoy without cost to Landlord. Additiona[ly, the fol[awing items shat[ be guaranteed for periods in excess of the one (1}year. Motor Compressor Units -five (5) years; Exterior Walls -two (2) years (guaranteed against air and moisture ieskage}; Roofing -two (2} years. (H} lri the event Tenant's work involves the construction of a demising wall, Tenant shall physically indicate the proposed location of the demising wall on the floor of the Leased Premises, notify Landlord's architect that the location has been marked and that construction of the wall is about to begin, and give Landlord's archftect a raasanabie opportunity to come to the Leased Premises and inspect the proposed placement of the wall. (I) For any Tenant work that involves penetration of the roof surface, Tenant shall employ Landlord's roofing contrrector, thereby ensuring that the roofing bond and/or warranty will remain in full force and effect. The maintenance of Tenant's roof work will be the sole responsibility of Tenant and shalL.include the• repair. of adjoining. areas that might have been affected due to Water penetratlori thraugti Teriarit's roof vuork. ~ • {J). In the event Tenant rnust,obtaln a zoning variance, walver.or other change in order to use the Leased Premises for the purposes described in Article 1(M), or for any work Tenant desires to pertorm at the Leased Premises, Tenant shall first obtain Landlord's written approval, not be unnaasonably withheld or delayed, prior to seeking such a change. If Landlord's consent is given, Landlord agrees to cooperate with Tenant in such appilcaticn and Tenant agrees to: (i) keep Landlord advised of all developments as they occur,'{fi) provide Landlord with an opportunity to review all documents before they are filed, and (ill) give Landlord a reasonable amcunt of notice before.any hearings are held se that Landlord's representative shall have an opportunity to attend. Tenant shall noi.be permitted to enter into any agreements that affect the use, access, or cond[tion of the Shopping Cer>fer without first obtaining Landlord's written consent, and any attempt to do so shall constitute a default under the Lease. 35.. (A) POWER TO: CONFESS JUDGMENT: TENANT HEREBY AUTHORIZES AND EMPOWI=RS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF REGORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR TENANT, AND, WITH OFi WITHOUT DECLARATION FILED, CONFESS JUDGMENT AGAINST TENANT AND~IN~FAVOR OF LANDLORD, AS OF ANY TERM, FOR 7HE UNPAID OBLIGATIONS HEREUNDER, INCLUDING WITHOUT LIMlTAT[ON ALL ACCRUED AND UNPAID INTEREST CHARGES, RENTS OR OTHER CHARGES PAYABLE HEREUNDER, WHETHER 8Y ACCELERATION OR OTHERWISE, WITH COSTS OF SUIT AND A REASONABLE ATTOFtNEY'S COMMISSION OF FIFTEEN (15%) PERCENT, WITH RELEASE OF ALL ERRORS, WAIVING ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION, TO THE EXTENT THAT SUCH LAWS MAY LAWFULLY BE WAEVED. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT SHALL 8E DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE VALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMIN[SHED,AND RMAY BE EXERCISED FROM ~a 4/ZB/20D4 CB C:lgealallenllTEMPH.ease (1-49QODl Davin Shughsd 1078.doc RIDER "B" TIME TO TIME AND AS OFTEN AS LANDLORD SHALL ELECT, UNTIL SUCH TIME AS ALL OBL• IGATiONS HEREUNDER SHALL HAVE BEEN SATISFIED. WHEN THIS LEASE SHALL HAVE EXPIRED OR 8E TERMINATED BY REASON OF THE BREACH OF ANY PROVESION HEREOF, 1T SHALL BE LAWFUL FOR ANY PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR TENANT TO FILE AN AGREEMENT FOR ENTERING IN' ANY COURT OF COMPETENT JURISDICTION AN AMICABLE ACTION FOR CONFESSION OF JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE LEASED PREMISES, FOR WHICH THIS LEASE OR A TRUE AND CORRECT COPY• THEREOF SHALL BE A SUFFICIENT WARRANT, WHEREUPON, IF LANDLORD SO DESIRES, A WRIT OF POSSESSION MAY ISSUE FORTHWRH, WITHOUT ANY PRIOR WRIT OA PROCEEDINGS WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED TH1A SAME SHALL BE TERMINATED AND POSSESSION REMAIN IN OR HE RESTORED TO TENANT, LANDLORD SHALL HAVE THE I~iGHT UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, Oft UPON THE TERMINATION OR EXPIRATION OF THIS LEASE AS HERIINBEFORE SET FORTH, TO BRING ONE OR MORE AMICABLE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION BY CONFESSION OF JUDGMENT A5 AFORESAID. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT SHALL HE DEEMED TO EXHAUST THAT POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD.BY ANY GOURT TO BE VAUD, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND iT MAY BE EXERCISED FROM TIME TO TIME AND AS OFTEN AS LANDLORD SHALL ELECT. BY SIGNING THIS INSTRUMENT,.TENANT HEREBY ACKNOWLEDGES THAT TENANT HAS READ THIS LEASE {INCLUDING WITHOUT LIMITATION THE CONFESSIONS SET FORTH HEREIN), HAS HAD THE OPPORTUNITY TO HAVE THE SAME REVIEWED BY LEGAL COUNSEL, UNDERSTANDS THE SAME, AND AGREES TO THE PROVISIONS CONTAINED HEREIN, INCLUDING WITHOUT LIMITATION THE CONFESSION OF JUDGMENT PROVISIONS AND UNDERSTANDS THAT A CONFESSION OF JUDGMENT CONSTITUTES A WAIVER OF RIGHTS TENANT OTHERWISE WOULD HAVE TO PRIOR NOTICE AND A HEARING BEFORE A JUDGMENT iS ENTERED AGAINST TENANT .AND .WHICH .MQY RESULT IN A COURT JUDGMENT AGAINST TENANT WITHOUT' PRIOR NOTICE OR HEARING AND THAT THE OBLIGATIONS MAY BS COLLECTED FROM TENANT REGARDLESS OF ANY CLAIM TENANT MAY HAVE AGAINST LANDLbRD.OR.OTHERWISE. , .. - . • inlt<a! Here Tenant (B) POWER TO EXECUTE ON A JUDGMENT WITHOUT HEARING: TENANT HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD OR THE SHERIFF (OR•THE LAWFUL DESIGNEE OF THE SHERIFF) Wll'HIN ANY, COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO TAKE ALL ACTION ALLOWED BY OR PAOVIDEI3 FOR IN THE PENNSYLVANIA RULES OF CIVIL PROCEDURE OR OTHER APPLICABLE RULES OF CIVIL PROCEDURE _'TO EXECUTE ON 'ANY JUDGMENT ENTER);D AGAINST TENANT PURSUANT TO ONE OR BOTH CONFESSIONS OF JUDGMENT SET FORTH ABOVE WITHOUT PRIOR NOTICE OR HEARING OF ANY NATURE WHATSOEVER, WAIVING ALL LAWS EXEMPTING REAL OR 'PERSONAL PROPERTY FROM EXECUTION TO THE EXTENT THAT SUCH LAWS MAY LAWFULLY BE WAIVED.. NO. SINGLE EXERCISE OF 'THE FOREGOING POWER TO EXECUTE ON JUDGMENTS WITHOUT A HEARING SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERGISE SHALL HE HELD BY ANY COURT TO SE VALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS LANDLORD MAY ELECT. Initial Here Tenant 4/2812004 CB C;1sealcgertlTEMF'Stsasa {t-4800p) pawn ShuBhett 1675,doo RIDER .."B" 3B. Waiver of Statutory Nottca to Qu1t< In addition to ail other waivers provided in this Lease, Tenant hereby waives any and a(i benefits provided to tenants, to the fullest extent provided by law, conferred on tenants pursuant to the Pennsylvania Landlord and Tenant Act of 1951 (BS P.S. §250.501) as the same may be amended ar supplemented from time to time including, without limltattan, the statutory right to receive notices to quit in the case of default by Tenant under this Lease. See Article 15 of the Lease. END OF RIDER B ¢o d/28r200A CB C:~seetdlanNTEMP1Leesa {1-4BaOD) Dawn Shughurt 1075.doc +u+t-+u-cuu~t rtuty ua; t~' "rl h- 'l3 tC!•.flL'1-Y G'Ul{1' • ... •` RK ~atcjTin~ ~A+ u?-~UQ~(}Rii li,~l Mf1Y-07-2004 FRl 03sdA Pti KiHca 1t~Al.TY CnRY ~ !~ J' ~ . FAX ~{0. ~ •- .- ' 3 F9tI NQ. 3 aC B "1u ~lutt+cr+zaitap At]rea for Olrat:t L7ebtt ., 822 Q. oz p.2 P. Q03 P, 03 C!lASli ht~Ti20(tt?rr('IaN nt}RTsEMENTb'pRntr~i:.cr Dl;ttiia' CUM~ANY!•iAllki -"•"~' COMPAkYID UMIIER l~wl•1 S~ ~ ert 1~~~~ ~0 -1 e~S~ t? 2.r ( (Wa) au11wr1ru aboan Homed wmppdd~~yy to 1nitTota dubft eaWas to my (our) ot:enuat wl+b 1ho dopaGiu+ry npnted k+atow, ttllta eum~'+ny csronearalY dtta'iat ituuW front m'Y (our) aecaunt S (wa) autGoriaa ttm enmp;u+y to fnhima ttw n~ar1»+ty nteclit cutdev Hoc to cxeaed ibc loll! of Iha orfginnl anialu+i det+tted far tha W+try llt gaaxttaG ll:l'(+, ItYNAMri(• tYGtAL DAkX SAYIN~S,tcLQAN CITY S'fAT6 Ydt' iNS't7i't17ICk7 ?~'r~ ~Gt/1Y. ~J1 as~is~uJ Pa i7~r? • Ntil77R A MUMUI;tt KIN SAVI AtxQLtNT pAltU'R G 3 i 3 0~ 9 •~~ nt'~ovrrr ncrourtr q g 3~=7 a a a 6 ~j 'thla iWd+urhmtaA Wltl retmtfn hi affect uauti dm aampaay hos ratxived wirpen noli~ieattnn front rna (or sltl+ar of us) ai the a+kl+'rrr llalad t~ah+~r/abnVa tfiat is to bs laminated fn such Nme and rnnnoat For thn company to not rot it. ' (~tir eflhor 6! us} have Ute right to stop payment of n debit ontry by notitivatdott to my Qgposflory 3 ltuslness days bta(oro my account b ahan.~eti, After aecotutt has been chirgeci,l have tho I'Ight to hav® the amount of ah etraneous dekal! lmmedlattrgr arodltet! to my account uy doposltary, provldod 1(wo~ send Written Halite of s+sc}t dabh entry !rt errae• io dapnsitory wAhln fllteen days tpl owing csuattao of the account slatemonl or so days oiler po9t6tq whfehsver acaurs filet. ~G}W ~ .s'~tUC~~'7LZt`-I' ~'CT,lCI6f4/~3~Ik.+1'~gSsor; ~+~ ~~~ ~ AIIURRp Ctl'Y Hl'ATd' 'LIP cuur_ ~.5~ Gl1 ~ t-1vt,r !~ a ~ n,~ rC' ~/ IfO, li. '717 --- ~"8v --7(3 ~ „Sure, i n'7 s' Car•!!s(a Par?~~t Slti 'I,Iitt: ~ OhTP. S'!'APf.L YOii7!'sD Q(JEClC OT>:17t3POSiT SL1P jcR~nm [flVIOt~ 1<IS'sltFi. s•~ ~. _ ~:?i~'' s:. ;-: Dare r ~ ,.y! ~..... titi _ _ _ r . vim' { ~ 5 i _ tl] ~~'~'~ 3-~''~GR7}I J"~M4 ~~1'IC]gy:T~ -~L3:3L3:029;5-5t:`-~~~~ 983672iJ'269p'D'~93 .~.` l' • ~• ~ i ~ 4~1 7"~.J' EXHIBIT A This site plan is Intended to be an approximate depiction of the Shopping Center, No representation ar vyarcanttyy is made with respect to the acwal lacatlon, number or configuradan of 6uitdir~gs, Curb Guts, Abutting Thoroughfares, Parking Areas, Traffic Patterns, ar of tiie Tenants intended to be within the 5hopptnnqq Center. The Landlord specificaU reserves the right t0 Cf18Rge the coraxent and conB uraCion of the Shopping Center from t~me to time and at any time the Landlord desires in its so~e and absolute discretion, or as is required to conform to Local Goverrting Agencies. The leased premises steal! be the area identified below. II ! i G!~ ~ "~ N ! CTI ~ QA Oo ~ i ~ ~ ! i .. ~_ ~~ W ~. i .,. ~ I ~ c~t+ >Z Stonehedge Qrive West 1 1 co v ~~ E X~ 1 B i T A PD: 3'1704 ~~omaon~ Site rr1075 IXFt1B,JT "H-i" INDEMtJITY AGREEMENT This INDEMNITY AGREEMENT pertains to work to be performed at the Stonettedge Square, . and located in Carlisle, Pennsylvania, herein refereed to as "Shopping Center" (Kitnco Site 1075). By (herein referred to as "Contractor), having an address at: and is part c# the Contract with (herein referred to as 'Tenant"), having an address at which Contract is dated for work to be done at the Shopping Center from approximately through Contractor acknowledges that Tenant is contractually obftgated to obtain this Agreement under a lease for its store at the Sfropping Center. Contractor has entered (nta this Agreement in a~der to Induce Tenentfo retain Contractor to perform certain wor[c at its srore. Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESS Stonehenge Center, LLC, and Kimco Realty Corporation, hereinafter collectively referred to as Landlord, its respective agents and employees, assigns, and architects of and from all Ilabilities, claims, losses, damages, (njury, causes of actions and suits of whatever nature for persona! Injury, including death, and for property damage, arising out of or alleged to arise out ot, or ahy conditions of, the work performed under this Contract, whether by Contractor ar by any sub>contrador, and whether any claim, cause of action, or soft is asserted against Landlord or its agents and employees, assigns, and architects, or Contractor, severally, Jointly, or Jointly and severally. Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESS Landlord, its agents and employees, assigns, and architects of aqd from any and ail costs of any nature, Inc~uding without Ilmitatton investigation, adjustment, aitomey's tees, expenss fees, court costs, administrative costs, and other items of expense arising out of any claim, house of action or sui# of the kind and nature herein set forth. Neither Contractor nor any sub-contractor shall file any mechanic's, materialmen's, or other !tens either against the Leased Premises or the Shopping Center from any work, labor, services or materials suppled or performed by Contractor ar by any sub-contractor. Contractor hereby agrees to tNDEMNiFY, SAVE & HOLD HARMLESS Landlord, lie agents and employees, asslgns,~and architects of and fmm any and ail costs of any nature, Including without Limitation investigation, adjustment, attorney's fees, expert's fees, court costs, administrative costs, and other items of expense arising out of any mechanic's, materialmen's, or other liens filed against the either against the Leased Premises• ar the Shopping Center by Contractor or by any sub-contractor. Contractor hereby agrees that it will obtain Comprehensive General Liability insurance including Blankek Contractual Liability with minimum amount of $3,000,000.00 Combined Single Limit for bodily Injury and property damage. Additionally, Contractor must also obtain Workers Compensation and Occupational Disease Insunartce with statutory limits and form as required by the State in which the work is to be performed, and Employer's Liability inr(th a Ilinit of not less thari $1,000,000.00 for ail damage. Certificates for all insurance. will be submitted to Landlord before commencement of any work. The Certificates must indicate that the °HOLD HARMLESS AGREEMENT' contractual indemnity as set forth in th1s agreement Is Insured. Landlord must be named as an additional insured and the policy must provide that no less than 15 days advance written notice wil! be given to both the party to whom such Certificates are issued and the additional insured in the event of cancellation of the policies or a reduction (n the limits of liabilities set forth above. At I~ndiord's request, Contractor will immed[ately furnish Landlord with a true and complete copy of any insurance policy Landlord wants to renew. No Invoices far payments will be honored unless such Certificates of Insurance (or the policy, if requested) had been filed timely with Landlord at 3333 flew Hyde Park Road, Suite 100, New Hyde Park, NY 11042-0020. IX•H-1 4128Pd004 C8 C:\sea~ellantl7EMPlleasa (1-4900D) Caws Shuphert 1075.dac __ a ' Cahtracior acknowiedge$ that Landlord did not retain Contractor to perfartn any work at the Shopping Center and agrees that Contractor will not Took to Land[ard far any compensation whatsoever far any wor(c It performs at the Shopping Center. IN WITNESS HEREOF, this Contractor has executed this Agreement this day of _. 200 . CONTRACTOR: By: Name: Title: IX-9-i A128l2004 CB C1sealdfentlTEMW..ease (i-49~ga) Dawn Shughar11075.doc ~X~~~1~ / ! . `` +~ q/ ~DAU'V~~l AND ASSQCIAT£5 March 22, 2007 9~0 Walnut Bottom Road Brenda ,1 Walker - Car'lfsle, PA ~ Cedar Shopping Centers, lnC l~al3 44 South Bayles Avenue ,. Port Washington, NY 14050-3765 4'OiCE - ~ 17.z5a.ssoo RE: Dawn & Associates Lease ~'~' We recently mailed the February 2407 rent payment Please be~ 71~zs8.san advised that we will be vacating the property, 950 Walnut Bottom - . ,;~: ~ssi-se Road, Suite #16, as of April '! 5, 2007. We would like to have our ISase . www.dawnrealtynet term end Apri130, 2007. We have every intention Of paying our last two months rent when vacating. Please contact me with your decision regarding our (ease so l can plan accordingly. t hope since you have secured a new tenant for my space, that we can - resolve this amicably. I can be reached at (717) 258-8800. - Sincerely, Dawn 5hughart ~ •~ Broker/Owner Also note my address is not 605 Roxbury Road, Newville, PA 17241. Your notice of default arrived March 18, 2007 not Febnaary 23, 2007. MAR 2 G 2007 ~ ~ j ~ .._..~....r.,_ i " E x ~~ ~~~ ~-1 C ,: ' ~~ CEU,tR SFIOPPI7~G CENTERS, 1NC. i ~q nai 1'j l~I, 1'!1 1-ill i-'. 1 i 1 t ~ 1 .~ .~i.i=- SENT V1A FAX (717) 258-8877 & U.S. MA1L March 2b, 2007 Dawn Shughart - . Broker/Owner Dawn & Associates Realty 950 Walnut Bottom,Road Suite #16 Carlisle, Pennsylvania 170J 3 Re: Sionehedge Square Shopping Center 950 Walnut Bottom Road Carlisle, Pennsylvania Dear Ms_ Shughart: We are in receipt of your letter dated March 22, 2007 regarding the above noted premises and your lease term. The Lease Agreement dated May 1, 2004 Section 1 (G) defines the expiration date of the lease as the last day of the calendar month of the third anniversary of the day immediately preceding the rent commencement date. Your rent commencement date was August 16, 2004. Therefore, the term of your lease shall expire on August 31, 2007. We expect you to observe the obligations of the lease as stipulated therein. If you have any questions, please contact me at (.7l 7) 909-4b85. Thanlc you. Sincerely, ~j .--~ ` ~.s~- L Cami D. Staub Property Manager Cc: Brenda Walker David Johnson ~x~i~~~, l~ r°: BROADS ,e ~ F_-----_ & SINON LLP Kenneth J. Rollins ph (717) 237-6782 fx (717) 232-1459 krollins@rhoads-sinon. com FII.Exo~ 10737/01 May 11, 2007 Re: Shopping Center Lease dated May 1, 2004, and Personal Guaranty thereof Dawn Shughart, Owner Dawn Shughart Realty, LLC d/b/a Dawn & Associates Realty 1156 Walnut Bottom Road Carlisle, PA 17013 Dear Ms. Shughart: VIA CERTIFIED MAIL We are writing on behalf of our client, Cedar Stonehedge, LLC ("Cedar"), successor to the original Landlord under that certain Shopping Center Lease entered into by and between Stonehedge Center, LLC, as Landlord, and Dawn Shughart Realty, LLC ("Shughart Realty"), as Tenant, dated as of May 1, 2004 (hereafter, the "Lease"), as well as the personal Guaranty thereof executed by you and dated as of March 31, 2004 (the "Guaranty"). For the reasons that follow, Cedar finds that Shughart Realty is in default under the Lease and demands immediate payment in the amount of $15,770.91 as amounts owing to Cedar pursuant to the Lease and Guaranty. Section 1(G) of the Lease provides that the Lease was to expire on August 31, 2007. Shughart Realty informed Cedar by letter dated March 22, 2007 that it intended to unilaterally terminate the Lease on Apri130, 2007, approximately four (4) months prior to the expiration date set forth in the Lease. By letter dated March 26, 2007, Cedar rejected Shughart Realty's proposed early termination. Notwithstanding this rejection, Shughart Realty vacated the Leased Premises on April 16, 2007 and has failed to remit rent payments for March, April or May. Accordingly, Shughart Realty is in default under Sections 15(A)(1) and 15(A)(8) of the Lease. Section 9(B) of the Lease expressly prohibits Shughart Realty from operating a similar business at any location within three (3) miles of the Leased Premises. It has come to our attention that Shughart Realty is now conducting business approximately 400 yards from the Leased Premises. Accordingly, Shughart Realty is also in default under Section 15(A)(2) of the Lease. A violation of Section 9(B) of the Lease triggers an increase in annual Base Rent of twenty-five percent (25%), resulting in a commensurate increase in the monthly rental installment from $2,088.65 to $2,610.81. Because Shughart Realty violated Section 9(B) in April, Cedar is applying this increase to Rent due beginning in May. 650149.2 Rhoads ~ Sinon LLP Attorneys at Law • Twelfth Floor One South Market Square P.O. Box 1146 u~rr;~l,,,ra pa »ina_i 14•fi . nh (717) 233-5731 fx (717) 232-1459 • www.rhoads-sinon.com May 11, 2007 Page 2 Additionally, Shughart Realty's premature vacating of the Leased Premises also violates Section 9(C) of the Lease, which requires that Shughart Realty continuously operate its business from the Leased Premises with diligence and a full staff. Accordingly, Shughart Realty is in default under Section 15(A)(8) of the Lease. Further, Section 15(D) provides that, upon a default by Shughart Realty, Cedar may elect to declare all of the aggregate Rent for the remaining balance of the Lease Term, as well as all accrued Rent, to be immediately due and payable, and to recover immediately against Shughart Realty all such Rent. Cedar hereby declares all such sums immediately due and payable. To date, Cedar has been Luiable to re-let the Leased Premises despite its best efforts. In light of the foregoing, the amounts owed to Cedar pursuant to the Lease and Guaranty are as follows: Base Monthly Rent (March -April) $4,177.30 (2 months X $2,088.65) Base Monthly Rent (May -August) $10,443.24 (4 months X $2,610.81) Tax Rent (March -August) $1,038.48 (6 months X $173.08) Common Area Rent (March -August). $1,431.00 (6 months X $238.50) Management Fee (March -August) $501.30 (6 months X $83.55) Late Charge (March -May) $150.00 Legal Fees $500.00 Less Amounts from New Tenant ($0.00) e~osit Less Security D ($2 470.41) , Balance Due $15,770.91 + 15% interest per annuml Accordingly, Cedar demands immediate payment in the amount of $15,770.91 as amounts owed to Cedar pursuant to the terms of the Lease and Guaranty. This notification represents your final opportunity to make payment. If this amount is not paid in full (or other satisfactory arrangements made) within fifteen (15) days from your receipt of this letter, we have been authorized to institute appropriate legal action against Dawn Shughart Realty, LLC and you personally for the above amount plus additional legal fees and interest. Please note that you have personally guaranteed the payment of the foregoing amounts. Failure to make payment as required may result in a judgment against you and a lien against your personal assets. The "default interest rate" as set forth in Section 24(B) of the Lease. ,~ ~ May 11, 2007 Page 3 Should you have any questions or concerns regarding the foregoing, please contact the undersigned at One South Market Square, P.O. Box 1146, Harrisburg, PA 17108, (717) 233- 5731. Thank you. Very truly yours, BROADS & SINON LLP By: Kenneth J. Rollins cc: Brenda Walker, Vice President David Johnson, Regional Director -Property Management Cami D. Staub, Property Manager Sherill T. Moyer, Esquire Q" ~ ~ , Q' a o ~. ..~ .~ r-a Postage $ ~ O CertiNed Fee 0 Return Receipt Fee p Here (Endorsement Required) O ResMcted Delivery Fee t7 (Endorsement Required) r4 ~ Total Postage & Fees ~ ~ . y .C ° n o r 51~ ham -- orPOBoxNo, ~~y"' ~ I_ 1w1 Q~~~•y~ l ------.--- ~~ _` _ _ vr_`~+'s ~ ~ City, Slate, Z! W~ P_ulr~ ilc. PA t~Ot3 _ _ --°_-__-°,-- :carwrm~.rrn .._~. ^ Complete items 1, 2, and 3. Also complete Item 4 if Restricted Delivery is desired. ^ Print your name and address on the reverse so that we can return the card to you. ^ Attach this card to the back of the maiipiece, or on the front 'If space permits. 1. Article Addressed to: ;Dawn Shughart, Owner ~~~~~Dawn Shughart Realty, LLC 'd/b/a Dawn & Associates Realty '1156 Walnut Bottom Road `:Carlisle, PA 17013 A. Sign re D. X Agent ^ Addressee B. Received by Printed N C. Date of Delivery Is ivery address different from item 1? ^ Yes If YES, enter delNery address below: ^ No ~ 3. Service Type _ ~Certpied Map ^ Mail ^ Registered ^ Return Receipt for Merohandise ^ Insured Mail ^ C.O.D. 4. Restricted Delivery? (Extra Fee) ^ Yeq 2. Article Number 7~ ~ 6 ~ 10 G ~ D ~ 5 10 4 0 519 9 (transfer from service laGe!) Ps Form 3811, February 2004 Domestic Return Receipt 702595-02-M-7540 ; ~x~~~~ ~~ y GUARANTY 1FA51N0 LE{3AL CON&l'. GUARANTY (herein called "Guaranty`) dated as of March 3'i, 2004, by DAWN SiiUGHART, ari individual, having an address at 605 Roxbury Road, Alewviiie, PA 77241. PRELIMINARY STATEMENT Dawn 5hughart is hereinafter called "Guarantor". Stonehedge Canter, LLC, having an address at 3333 New Hyde Park Road, P.O. Box 5020, New H e Park, ew Y~~ojj~~ '11042-0020, is herein and in the Lease called "Landlord". Dawn Shughart ft~r~lt'E~.C~is herein and in the Lease called "Tenant". Landlordt and Tenant are finalizing a lease (herein called 'Lease') dated as of March 37, 2004, which demises to Tenant certain premises (herein and in the Lease called "Leased. Premises") described fn the Lease. The Leased Premises are located in Landlord's shopping center in Carlisle, Pennsylvania (herein and in the Lease called "Shopping Center"j. Tenant is either wholly owned by Guarantor or Guarantor has a significant interest In the business affairs of Tenant Landlord is unwilling to enter into the Lease with Tenant unless Guarantor exocutes and delivers this Guaranty to Landlord. Guarantor has received a copy of the Lease, has examined the Lease, and fs familiar with all the teens, covenants, and condftfons contained therein. Guarantor hereby covenants, warrants and represents that the making of the Guaranty and the making of the Lease is in furtherance of its business purposes and is to the benefit of Guarantor and, if the Guarantor fs a corporation, the execution and delivery of the Guaranty has been duty approved by Guarantor's Board of Directors. WiTNESSETH: NOW, THEREFORE, In consideration of the foregoing, Guarantor hereby agrees with Landlord as folfawA: 1. Guarantor hereby guarantees a(I of the payments to 6e made by Tenant under the Lease. All such payments are herein and in the Lease called "Rent", and Include Base Rent, Percentage Rent, Common Area Rent, Tax Rent, and additional Rent (as such expressions era defined In the Lease) and all other sums, costs, expenses, charges, payments, indemnifications by Tenant to Landlord, and deposits, as well as all sums payable as damages upon a default under the Lease. Guarantor hereby guarantees that each and ail of the foregoing will be paid !n full when due in accordance with the Lease. Furthermore, Guarantor hereby guarantees that, in si~dltlon to paying all sums described herein and in the Lease, Tenant wll! faithfully perform end observe each and every term, covenant, and condition of the .Lease to be performed or observed by Tenant. 2. This Guaranty is an uncondltlanal, irrevocable and absolute guaranty of payment and performance. Guarantor's Ifabftlty shall be primary and not derivative or secondary.. If for any reason any provision of the Lease shall eat be completely and strictly performed or observed 6}r Tenant as required thereby, or if any Item of Rent shelf not be paid when due in accordance .vVith the ,provisions of _the Lease, ,Guarantor. agrees to. promptly perform pr observe, or cause the performance or observance of each such provision, and will immediately pay all such items or Rent to the parson entitled thereto pursuant to the prov(sians of the.Lease, ln.all cases. regardless of whether Landlord shall have taken any steps to enforce any rights against Tenant or any other person to carnpel any such performance or observance or to collect the item(s) of Rent either pursuant to the provisions of the Lease, or at law, or in equity, and regardless of any other condifion or contingency. Guarantor also agrees to pay to Landlord the costs and expenses {including reasonable attorneys' fees) Incurred by Landlord for collecting or attempting to collect any item(s) of Rant tir otherwise enforcing the Lease against Tenant or collecting under or enforcing this Guaranty. Landlord shall have the right to enforce this Guaranty regardless of the receipt by Landlord of a security deposit from Tenant or the enforcement of any remedies against such security or the release of such security. 3. Guarantors obligations under this Guaranty shall En no way. be affected •or impaired by reason of the happening at any time of any of the following with respect to efther the Lease or the Guaranty, even if such happening occurs without notice to or consent of Guarantor. (a) the waiver b}~ Landlord or its successors or assigns of the performance by Tenant of any prevision(s) of the Lease; (b) the extension of the time for payment by Tenant of 3!3112004 C8 C:lsaakl2enl5TEMP1Guaranty (i-4809Dj Dawn Shugherl 1075.DOC . .. i y ? _ any item(s) of Rent or of the lima for performance by Tenant"of any other obligations under the Lease; (c} the assignment, subletting, or mortgaging, or the purported assignment, subletting, ar mortgaging, of ali or part cf Tenant's interest Nm the Lease or the Leased Premises whether or not' permitted by the Lease, or permitted by' Landlord; (d} the modification or amendment (whether material or otherwise) of any ohllgatton of Tenant set forth in the Lease; (e) Landiard's taking or felting to take any actions} referred to In the Lease; (f) the failure, omission, or delay of Landlord to enforce, assert, or exercise any right, power, or remedy conferred on Landlord In the Lease or by law or any a6tlon on the. part of Landlord granting Indulgence or extension in any form; (g) the voluntary of involuntary bankruptoy of Tenant or the Nquidation, dissolution, sale, or other disposition of! ail or substantlaliy all the assets, marshalling of assets and liab(Iit[es, receivership, insoiv'ency, assignment for the benefit of creditors; reorganization, arrangement, composition or readjustment of, or the dfsafflrmance of the Lease in any such proceeding; (h} the release of Tenant from perforrance of any provision of the Lease by operation of law; {i} the receipt and acceptance by Landlord of notes, checks, or other Instruments for the payment of money made by Tenant or others, or any extensions or renewals thereof; or G} any other cause, whether similar to or dissimilar from any of the foregoing. Furthermore, in the avant of; rejection or disafffrmance a# the Lease by Tenant or Tenant's trustee in bankruptcy pursuant to the United State Bankruptcy Code or any other law affecting credftors'. rights, Gua r(tar wEt}, if Landlord so requests, assume ali obligations and lfabllftles of Tenant under the Lea~B, to the same extent as 1f Guarantor had bean origlnaliy named instead of Tenant as a party to the Lease and there had been no rejection or disaffirmance; and Guarantor will confirm `such assumption in writing a# the request of Landlord on or after such rejection or disafflrmance. Guarantor, upon such assump8an, shalt have a!1 rights of Tenant under the Lease (to the extent permitted by iaw}. 4. Guarantor hereby watves notice of: a} the acceptance of this Guaranty; b} notice of any breach or non-performance of the Lease by Tenant, or the failure to sat(sfy any obligations or liabilities contracted or Incurred by Tenant; -and, c) notice of execution and delivery of the Lease. ~ Addit(ona(ly, Guarantor Waives ail sun:tyship defenses and consents to the Supreme Court of New York State or any other appropriate Court of that State having jurisdiction in which to bring any claim by Landlord. 5. This Guaranty may be enforced and shall be governed by and construed in accordance with the laws of the State of New York. 6. This Guaranty may not and cannot be conceited, terminated, modified, or amended except by a written agreement executed by landlord and delivered to Guarantor. Any attempted cancellation, termination, modification, or amendment without such agreement executed and delivered by Landlord shad be void. 7. No waiver by Landlord of the payment by Guarantor of any of fts obligations contained in this Guaranty,.or any extension of time for the payment Esy Guarantor of any such abligatlons, sFialf affect or impair this Guaranty or constitute a waiver or relinquishment of any rights of Landlord for fhe future. No action brought under this Guaranty against Guarantor and no recovery had fn pursuance thereof shall be any bar or defiense to any further action or recovery which may be brought or had under this Guaranty by reason of any further defautt{s} of Tenant. e, All the provisions of this Guaranty shat)"inure to the benefit of Landlord and its grantees, successors,.and as~lgns, arrd shall inure to the benefit of any future owner of fire fee title of which the Leasecl~Pr'emises'are a part aimd shat[ Inure to~tFie bent3flt of`any lessee to whom the property shall have bean leased contemporaneously with a transfer of fee title (a so-called "sale and leasetmac(i transaction°}; and..atl the provisions ot:this Guaranty shall be binding upon Guararifot and Its h~eirs,~lege! representatives, successors and assigns. 9. This Guaranty shall be in effect with respect to any and ail renewals, extensions, or continuations of the. Lease whether or not the Lease provides for or permits such renewals, extensions, ar continuations, and whenever such renewals, extensions, ar continuations shall commence, and whether sucEi renewals, extensions, or continuations shall be pursuant to a renewal, extension, or continuation agreement incorporating ali or part(s) of the Lease by reference or shall'tie p reliant to a new and separate lease agreement. The p~ovisicns of this Guaranty shall also ap~~ with respect to each petlod(s} of time that Tenant holds over, until the Leased Premises has been surrendered in accordance with the provisions of the Lease. 3/31/2004 C8 C:Lsealcliant17Eh1P1Guaraniy (1.491]BDJ Dawn Shughert 1075.DOC ~. + „ ..._ r 10. As a further inducement to Landlord to make and enter into the Lease and in canstderatlon thereof, Guarantor hereby covenants and agrees that in eny action or prcoeeding brought liy Landlord an, under ar by virtue of this Guaranty or arising out of the terms, covenants and provisions of this Guaranty or of the Lease, Guarantor she[i and hereby does waive trial by jury. 11. Guarantor may be joined in any action against Tenant in connec#ion with the Lease and recovery m~y be had against Guarantor In such action or in any independent action against Guarantor. ~;. . i2. If this ~usranty is signed by more than one person or entity as Guarantor, than the persons and/or enti#Ies are jointly and severally. referred to herein as Guarantor and each such. person or entity shall, be Jointly and severally liable far all,of the pbligations of Guarantor. 13. All of Landlord's rights end remedies under the Lease and under this Guaranty shall be distinct, separate and; cumulative and no such right or remedy shall be excluslvo of, or a waiver of, any of the others. 14. Any notice saint by Guarantor to Landlord or by Landlord to Guarantor shall be sufficient if sent by United S s Registered or Certified Mail, Return Receipt Requested, or by registered overnight courier , e.g. Federal Express), to the address of such party herein specifiied or io suoh other address as such party shall hays designated by simliar written notice; and such notice shall be deemed to have been given as of the day it was sent as indicated by the postmark on the envelope caniaining the notice or comparable evidence. 15. This Guarant~, the obligations and gabliltfes of the Guarantor hereunder, and any payment by Guarantor pu uant hereto, shall be without recourse by the Guarantor against the Tenant whose obligations ~ r liabilities are guarantied 6y this Guaranty. ~. IN WETNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed es of the day. and, year.first above written.. .. WITNESSES Td GUARANTOR: GU ANTOR: ~~. DAWN SH GHAAT ' Social Security No.: ~Jn-~oa "3 ~ L/6 . _ i ~ . n ACKNOWLEDGMENT FOR GUARANTOR State of ~NSy/~,q..;,~1.~; i .. .... .. )~~•=. County ofeur~bcz~tw~ . On. the .a r~ day; of , h'Pr~. ~ !n the year 2004 before me, the undersl a Notary .Public in and for said State, personally appeared fr- T ~ personally known to me to be the individual whose name is subscribed to the withl ins#rument and acknowledged to me that he/she executed the same in his capacity, and that ~y his/h9r signature on the Instrument, the individual or the person upon behalf of which the individual anted, executed the instrument. ~~ 1 Notary P biic . ~ ~ Apl B. sEMS NOIAtt'! P081tC . CpRU~ ~RO~EiU.ANfi f~UNn' 313112904 CB C:lseelclkmll'rEMPlGueran~y (1-49aBDi Oawn Shuphart iQ15.0oC t c'~ ^' r- r ; _ '~T` ~ .. ~, _" --,~ r..:. r .,t.. _.. k, . _ _ l "~ ..dJ .... "C CEDAR-STONEHEDGE, LLC Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW DAWN SHUGHART REALTY, LLC NO. 6 `? - y l a ~ ~' ~< < fesh and DAWN SHUGHART, individually Defendants RULE 236 NOTICE OF ENTRY OF CONFESSED JUDGMENT To: Dawn Shughart Realty, LLC 1156 Walnut Bottom Road Carlisle, Pennsylvania 17013 You are hereby notified that on July ~~ , 2007, judgment by confession was entered against you in the amount of $26,186.55, plus accruing interest from the date of judgment, attorneys' fees and costs of collection. Attached hereto are copies of all documents filed with the Prothonotary in support of the confession of judgment. Date: ~vG 1 ! d U0~7 /S~ [ /~ O~ Prothonotary l 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. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania (717) 249-3166 I hereby certify that the following is the address of the Defendant: Dawn Shughart Realty, LLC 1156 Walnut Bottom Road Carlisle, Pennsylvania 17013 Kenne 7. Rollins Attorney for Plaintiff CEDAR-STONEHEDGE, LLC Plaintiff v. DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. ~7- yip ~ ~~~, ~ -~<<,~ ENTRY OF JUDGMENT AND NOW, this ~ day of July, 2007, Judgment is hereby entered in favor of the Plaintiff, Cedar-Stonehedge, LLC, and against the Defendant, Dawn Shughart Realty, LLC, and damages are assessed in the amount of $26,186.55, plus accruing interest from the date of judgment, attorneys' fees and costs of collection. s l ~..~.~~--'f ~ OC Prothonotary c~( ~+ Sherill T. Moyer, Esquire Attorney I.D. No. Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants CIVIL ACTION -LAW NO. d 7 ' y l ~~ ~t~ct -Fermi NOTICE UNDER RULE 2958.1 OF 3UDGMENT AND EXECUTION THERETO Notice of Defendant's RiEhts To: Dawn Shughart Realty, LLC 1156 Walnut Bottom Road Carlisle, Pennsylvania 17013 A judgment in the amount of Twenty-six Thousand One Hundred Eighty-six and 55/100 Dollars ($26,186.55), plus accruing interest from the date of judgment, attorneys' fees and costs of collection, has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a Confession of Judgment contained in a written agreement or other paper allegedly signed by you. The Sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIlZTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. w IF YOU CANNOT AFFORD T`O DIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania (717) 249-3166 Dated: July 10, 2007 Respectfully submitted, BROADS & SINON LLP By: She 1 T. Moyer, Esquire Kenneth J. Rollins, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for the Defendants, Dawn Shughart Realty, LLC and Dawn Shughart, individually, for the purpose of confessing judgment; Attorneys for the Plaintiff, Cedar-Stonehedge, LLC, for all other purposes CEDAR-STONEHEDGE, LLC Plaintiff v. DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. Q~- y f ~. (o c l ~~ ~ -~Cl`M ENTRY OF JUDGMENT ~k AND NOW, this ~ ~ day of July, 2007, Judgment is hereby entered in favor of the Plaintiff, Cedar-Stonehedge, LLC, and against the Defendant, Dawn Shughart, and damages are assessed in the amount of $26,186.55, plus accruing interest from the date of judgment, attorneys' fees and costs of collection. ~~ Prothonotary CEDAR-STONEHEDGE, LLC Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW DAWN SHUGHART REALTY, LLC NO. ~ 7 _ ~ 1 ~ ~ ~ ~ ~ ~ ~ f -~C ~,~ and ~7 DAWN SHUGHART, individually Defendants RULE 236 NOTICE OF ENTRY OF CONFESSED JUDGMENT To: Dawn Shughart 1156 Walnut Bottom Road Carlisle, Pennsylvania 17013 You are hereby notified that on July ~ ~ , 2007, judgment by confession was entered against you in the amount of $26,186.55, plus accruing interest from the date of judgment, attorneys' fees and costs of collection. Attached hereto are copies of all documents filed with the Prothonotary in support of the confession of judgment. Date: ~ ~ ~6 d7 ~~ Prothonotary ~~ YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania (717) 249-3166 I hereby certify that the following is the address of the Defendant: Dawn Shughart 1156 Walnut Bottom Road Carlisle, Pennsylvania 17013 Kenneth .Rollins Attorney for Plaintiff Sherill T. Moyer, Esquire Attorney I.D. No. Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants CIVIL ACTION -LAW NO. ~ 7 .~~ f o~-$ C1lr~ ltf c~ NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THERETO Notice of Defendant's Rishts To: Dawn Shughart 1156 Walnut Bottom Road Carlisle, Pennsylvania 17013 A judgment in the amount of Twenty-six Thousand One Hundred Eighty-six and 55/100 Dollars ($26,186.55), plus accruing interest from the date of judgment, attorneys' fees and costs of collection, has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a Confession of Judgment contained in a written agreement or other paper allegedly signed by you. The Sheriffmay take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRIl~IG A LAWYER. .- YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania (717) 249-3166 Dated: July 10, 2007 Respectfully submitted, BROADS & SINON LLP By: h 11 T. Moyer, Esquire Kenneth J. Rollins, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for the Defendants, Dawn Shughart Realty, LLC and Dawn Shughart, individually, for the purpose of confessing judgment; Attorneys for the Plaintiff, Cedar-Stonehedge, LLC, for all other purposes ,M. ~ ~ ,~..~ ~ ~ -~ ~ ~~ ~.~ ~ f 'i'T ~`" ,~ "`~ t I 'Z `~ `~- ~ ~` c J~ ~ 1 4 ~ <.:~ ~o "~' ~ , =C •~~ ~ ~ ~ ~ N 4 h Michael A. Hynum, Esquire Supreme Court ID #85692 315 Bridge St., Lower Level New Cumberland, PA 17070 Attorney for Dawn Shughart and Dawn Shughart Realty, LLC CEDAR-STONEHEDGE, LLC IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 07-4126 DAWN SHUGHART REALTY, LLC CIVIL ACTION -LAW and DAWN SHUGHART, individually Defendants PETITION TO OPEN/STRIKE JUDGMENT AND NOW come DEFENDANTS, Dawn Shughart Realty, LLC and Dawn Shughart, by and through their counsel, Michael A. Hynum, Esquire, who files this Petition to Open/Strike Judgment and in support thereof avers as follows: 1. Petitioners are Dawn Shughart Realty (Realty), a Pennsylvania Limited Liability Company with an address of 1156 Walnut Bottom Road, Carlisle, PA 17013, and Dawn Shughart (Shughart), an adult individual with an address of Stable Court, Harrisburg, PA 1711 2. Respondent is Cedar-Stonehedge (Cedar), a Delaware Limited Liability Company with an office at 3307 Trindle Road, Camp Hill, PA 17011 and a wholly owned subsidiary or Cedar Shopping Centers, Inc., a Maryland Corporation having an office at 44 South Bayles Avenue, Port Washington, NY 11050. 3. On July 11, 2007, Respondent filed a Praecipe for Entry of Judgment, along with a Confession of Judgment and Complaint and related documents, for Judgment by Confession against Realty and Shughart. A true and correct copy of said filing is attached hereto, incorporated by reference and marked Exhibit "A". Petition to Open 4. The averments set forth in Paragraphs 1 through 3 are incorporated herein by reference 5. The Guaranty attached to Cedar's Complaint as E contains a provision that states the guaranty shall be governed by and construed in accordance with the laws of the state of New York. 6. Nowhere in its Complaint does Cedar aver that its attempts to Confess Judgment against Shughart are in conformance with the laws of the state of New York. 7. Cedar avers in its Complaint that the lease signed by Shughart was assigned to them on or about July 21, 2006. 8. Cedar has offered no document that affirms its claim that the lease in question was in fact assigned to them. 9. Cedar has not included an averment in its Complaint alleging a section of the PA Rules of Civil Procedure under which it brings its Complaint. As such, Cedar's claims for rent, tax rent, common area rent, management fee, late charges, broker's commission and attorney's fees are issues that require consideration of matters outside the lease pursuant to Pa. R.C.P. 2951(c). II. Petition to Strike 10. The averments set forth in Paragraphs 1 through 9 are incorporated herein by reference 11. The document attached to the Complaint as "Rider B" to the Lease Contains a section 35 entitled "Power to Confess Judgment." 12. Rider B contains several boxes containing the terms "Initial Here" and "Tenant." 13. None of these boxes contains the initials of Shughart or anyone else on behalf of the Petitioners. 14. Rider B is not otherwise signed or acknowledged by Shughart or anyone else on behalf of the Petitioners. 15. As such, Petitioners did not voluntarily, intelligently and knowingly waive their due process rights when executing a contract. 16. As such, Cedar seeks entry of judgment against a person or persons who did not authorize it. 17. As such, the warrant to confess judgment is deficient on its face. 18. As averred above, Cedar's Complaint for confessed judgment requires consideration of issues that require consideration of matters outside the lease pursuant to Pa. R.C.P. 2951(c). 19. As averred above, Cedar seeks judgment on behalf of a person 20. Petitioners request a stay of proceedings in this matter pending resolution of this Petition to Open/Strike Judgment. WHEREFORE, Petitioners, Dawn Shughart Realty, LLC and Dawn Shughart respectfully pray that this Honorable Court Strike/Open the Confessed Judgment in the above-captioned matter, along with other relief as deemed just and appropriate. Respectfully submitted, Date: U ~ Q~ Michael A. Hynum, uire Supreme Court ID 692 Hynum Law 315 Bridge St., Lower Level New Cumberland, PA 17070 [717] 774-1357 Attorney for Plaintiff Rx Date/Time AUG-13-2007(MON) 10: d9 717+258+8877 A.ug.13. 2001 10;55AM DAWN AND ASSOCIATES REALTY No. 5594 P, 6 I verify that the statements contained in the foregoing PETITION 7O OPENtSTRIKE JUDGMENT are true and correct to the best of my knowledge, infionnation and belief. I understand that false statements contained therein are made subject to the penalties of 18 Pa.C.S. Section x904 relating to unswom falsification to authorities. Date; 1 aAWN SHUGHART P. 006 CERTIFICATE OF SERVICE On this ~~day of August, 2007, I certify that a copy of the foregoing PETITION TO OPEN/STRIKE JUDGMENT was served upon the following counsel for Defendant by placing the same in the United States mail, first class, postage prepaid, addressed as follows: Kenneth J. Rollins, Esquire Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Michael A. Hynum, Sherill T. Moyer, Esquire Attorney I.D. No. Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants CIVII, ACTION -LAW NO. D ~, yI ~.~ ~~1~1 fu-ti CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint in Confession of Judgment (Money Judgment) filed in this action, I appear for the Defendants and confess judgment in favor of the Plaintiff, Cedar- Stonehedge, LLC, and against the Defendant, Dawn Shughart Realty, LLC, as follows, plus interest and costs from the date of judgment, attorneys' fees, and costs of collection as follows: Base Monthly Rent (March -April): Base Monthly Rent (May -August): Tax Rent (March -August): Common Area Rent (March -August): Management Fee (March -August): Late Charges: Broker's Commission: Less Amounts from New Tenant: Less Security Deposit: Plus Attorney's Commission (15%): $4,177.30 (2 months X $2,088.65) $10,443.24 (4 months X $2,610.81) $1,038.48 (6 months X $173.08) $1,431.00 (6 months X $23 8.50) $501.30 (6 months X $83.55) $150.00 $7,500.00 ($0.00) ($2,470.41) $3,415.64 TOTAL $26,186.55 Respectfully submitted, Dated: July 10, 2007 BROADS & SINON LLP By: Sh ' 1 T. Moyer, Esquire Kenneth J. Rollins, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for the Defendants, Dawn Shughart Realty, LLC and Dawn Shughart, individually, for the purpose of confessing judgment; Attorneys for the Plaintiff, Cedar-Stonehedge, LLC, for all other purposes CEDAR-STONEHEDGE, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA v. CIVII. ACTION -LAW DAWN SHUGHART REALTY, LLC NO. ~ ~ r ~ i ~ ~ C ` J' ( ~-~r and DAWN SHUGHART, individually Defendants RULE 236 NOTICE OF ENTRY OF CONFESSED JUDGMENT To: Dawn Shughart Realty, LLC 1156 Walnut Bottom Road Carlisle, Pennsylvania 17013 You are hereby notified that on July I ~ , 2007, judgment by confession was entered against you in the amount of $26,186.55, plus accruing interest from the date of judgment, attorneys' fees and costs of collection. Attached hereto are copies of all documents filed with the Prothonotary in support of the confession of judgment. Date: I1, ~.-b~r1 S ~ ~ GC. Prothonotary ~~~ 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. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania (717) 249-3166 CEDAR-STONEHEDGE, LLC Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants CIVIL ACTION -LAW NO. D ~ _ III ~ ~ E r~~ ! -tz~.~ ENTRY OF JUDGMENT AND NOW, this ~ ~ day of July, 2007, Judgment is hereby entered in favor of the Plaintiff, Cedar-Stonehedge, LLC, and against the Defendant, Dawn Shughart Realty, LLC, and damages are assessed in the amount of $26,186.55, plus accruing interest from the date of judgment, attorneys' fees and costs of collection. S Prothonotary ~9c Sherill T. Moyer, Esquire Attorney I.D. No. Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC Plaintiff v. DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THERETO Notice of Defendant's Rights To: Dawn Shughart Realty, LLC 1156 Walnut Bottom Road Carlisle, Pennsylvania 17013 A judgment in the amount of Twenty-six Thousand One Hundred Eighty-six and 55!100 Dollars ($26,186.55), plus accruing interest from the date of judgment, attorneys' fees and costs of collection, has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a Confession of Judgment contained in a written agreement or other paper allegedly signed by you. The Sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIlZTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, Pennsylvania (717) 249-3166 Dated: July 10, 2007 Respectfully submitted, RIiOADS & SINON LLP By: She 1 T. Moyer, Esquire Kenneth J. Rollins, Esquire One South Market Square P.O. Box 1146 Hamsburg, PA 17108-1146 (717) 233-5731 Attorneys for the Defendants, Dawn Shughart Realty, LLC and Dawn Shughart, individually, for the purpose of confessing judgment; Attorneys for the Plaintiff, Cedar-Stonehedge, LLC, for all other purposes Sherill T. Moyer, Esquire Attorney I.D. No. Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC IN THE COURT OF COMMON PLEAS OF CLrMBERLAND COUNTY, Plaintiff PENNSYLVANIA v. CIVIL ACTION -LAW DAWN SHUGHART REALTY, LLC NO. a 7_ 1~ ~ ~ ~ and DAWN SHUGHART, individually Defendants COMPLAINT IN CONFESSION OF JUDGMENT (MONEY JUDGMENT'1 NOW COMES Plaintiff, Cedar-Stonehedge, LLC ("Cedar" or "Landlord', by its undersigned attorneys, Rhoads & Sinop LLP, and files the within Complaint in Confession of Judgment (Money Judgment), stating as follows: 1. Cedar is a Delaware limited liability company having an office at 3307 Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Cedar is a wholly-owned subsidiary of Cedar Shopping Centers, Inc., a Maryland corporation having an office at 44 South Bayles Avenue, Port Washington, New York 11050. 3. Upon information and belief, Defendant Dawn Shughart Realty, LLC, d/b/a Dawn & Associates Realty ("Tenant"), is a Pennsylvania limited liability company having an office at 1156 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013. 4. Upon information and belief, Defendant Dawn Shughart ("Guarantor") is an adult individual employed at 1156 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013. 5. Upon information and belief, Guarantor owns a controlling interest in Tenant. BACKGROUND 6. On or about May 1, 2004, Stonehedge Center, LLC ("Stonehedge") entered into a Shopping Center Lease (the "Lease") with Tenant, pursuant to which Stonehedge leased to Tenant space in a shopping center located at 950 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013, known as "Stonehedge Square," as more particularly depicted in Exhibit "A" to the Lease (the "Leased Premises"). A true and correct copy of the Lease is attached hereto as Exhibit "A" and is incorporated herein by reference. 7. On or about July 21, 2006, Cedar consummated its acquisition of the Stonehedge Square shopping center from Stonehedge. 8. On or about July 21, 2006, in connection with the sale of Stonehedge Square, Stonehedge assigned its rights and obligations under the Lease to Cedar. 9. The Lease describes the "Lease Tenn" as: "Commencing on the Lease Commencement Date and ending at 12 noon on the Expiration Date (see Article 2)." See Lease, Section 1(F). 10. Article 2 of the Lease provides, in pertinent part: "The Lease Term shall expire without notice on the `Expiration Date'." See Lease, Section 2. 11. The Lease describes the "Expiration Date" as: "The last day of the calendar month in which occurs the 3rd anniversary of the day immediately preceding the Rent Commencement Date (see Article 2}." See Lease, Section 1(G). 12. The Lease describes the "Rent Commencement Date" as: "90 days after the Lease Commencement Date (see Article 2)." See Lease, Section 1(E). 13. The Lease describes the "Lease Commencement Date" as: "The date this Lease is fully executed by Landlord and Tenant (see Article 2)." See Lease, Section 1(D). 14. The Lease was executed by Guarantor on behalf of Tenant on Apri130, 2004, and by a representative of Stonehedge on May 18, 2004. Accordingly, the Lease Commencement Date was May 18, 2004. See Lease, pp. 2-3. 15. The Rent Commencement Date was August 16, 2004, which was ninety (90) days after May 18, 2004. 16. The Expiration Date is August 31, 2007, which represents the last day of the calendar month in which the third anniversary of the Rent Commencement Date occurred. 17. The Monthly Base Rent for third year of the Lease is $2,088.65. See Lease, Section 1(H). 18. In addition to Base Rent, Tenant is required to pay monthly Tax Rent in the amount of $173.08, monthly Common Area Rent in the amount of $238.50, and a monthly Management Fee in the amount of $83.55. See Lease, Sections 3(A), 5(B) and 8(D). 19. All payments due under the Lease are due on the first day of each calendar month. See Lease, Section 3(A). 20. Late payments are subject to a $50.00 late charge. See Lease, Section 3(C). COUNTI CONFESSION OF JUDGMENT CEDAR-STONEHEDGE. LLC V. DAWN SHUGHART REALTY, LLC 21. The averments set forth in Paragraphs 1 through 20 are incorporated herein by reference. 22. By letter dated March 22, 2007, Tenant notified Cedaz of its intention to vacate the Leased Premises on April 15, 2007 (the "March 22nd Letter"). A true and correct copy of the March 22nd Letter is attached hereto as Exhibit "B" and incorporated herein by reference. 23. In the March 22nd Letter, Tenant stated that: "We would like to have our lease term end on April 30, 2007. We have every intention of paying our last two months rent when vacating. Please contact me with your decision regarding our lease so I can plan accordingly." 24. February's past-due rent payment was enclosed with the March 22nd Letter; however, the past-due March rent payment was not. 25. By letter dated March 26, 2007, Cedar denied Tenant's request for early termination, reciting the terms of the Lease and its August 31, 2007 expiration date, and stating that Cedar expected Tenant to observe its obligations under the Lease (the "March 26th Letter"). A true and correct copy of the March 26th Letter is attached hereto as Exhibit "C" and incorporated herein by reference. 26. Despite Cedar's denial of Tenant's request for early termination of the Lease, Tenant vacated the premises on April 16, 2007. 27. Tenant has failed to remit rent payments for. the months of March, April, May, June and July, 2007. 28. Accordingly, Tenant is in default under Sections 15(A)(1) and 15(A)(8) of the Lease. 29. Section 9(B) of the Lease prohibits Tenant from operating a similar business at any location within three (3) miles of the Leased Premises. 30. Tenant is currently operating the business that it had been running out of the Leased Premises at a location approximately four hundred (400) yards from the Leased Premises. 31. Accordingly, Tenant is in default under Section 15(A)(2) of the Lease. 32. A violation of Section 9(B) triggers atwenty-five percent (25%) increase in annual Base Rent. See Lease, Section 9(B). 33. Tenant violated Section 9(B) in April; accordingly, the increase in rent is applicable to May's rent and each subsequent month while the violation is ongoing. 34. Section 9(C) of the Lease requires that Tenant continuously operate its business from the Leased Premises diligently and with a full staff. 35. Tenant ceased operating its business from the Leased Premises on April 16, 2007. 36. Accordingly, Tenant is in default under Section 15(A)(8) of the Lease. 37. Section 15(D) of the Lease provides that, upon a default by Tenant, Cedar may elect to declare all of the aggregate rent for the remaining balance of the Lease Term, as well as all accrued rent, to be immediately due and payable, and to recover immediately against Tenant all such rent. 38. By letter dated May 11, 2007, Cedar, through its counsel, informed Tenant that it was declaring all such sums immediately due and payable (the "Demand Letter"). A true and correct copy of the Demand Letter is attached hereto as Exhibit "D" and incorporated herein by reference. 39. Tenant has failed to comply with the terms of the Demand Letter, or otherwise cure the aforesaid defaults. 40. As a direct result of Tenant's breach of, and default under, the Lease, Cedar has incurred a broker's commission in the amount of $7,500.00 in connection with Cedar's securing a new tenant for the Leased Premises. 41. As of the date hereof, Cedar has not begun receiving rent from the new tenant referred to in Paragraph 40 above. 42. The Lease contains Confession of Judgment and Warrant of Attorney provisions, which empower any attorney of any court of record to appear for and enter judgment against the Tenant and in favor of Cedar upon a default by Tenant. See Lease, Section 35(A). 43. The Confession of Judgment and Warrant of Attorney provisions contained in the Lease permit confession of judgment in an amount equal to all unpaid obligations thereunder, including without limitation all accrued and unpaid interest charges, rents or other charges payable thereunder, whether by acceleration or otherwise, with costs of suit and a reasonable attorney's commission of fifteen percent (15%). See Lease, Section 35(A). 44. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 45. The Lease has not been assigned by Cedar. 4b. Judgment has not been entered on the Lease in any jurisdiction. 47. The actual amounts presently due and payable to Cedar under the Lease are itemized as follows: Base Monthly Rent (March -April): Base Monthly Rent (May -August) Tax Rent (March -August): Common Area Rent (March -August) Management Fee (March -August) Late Charges: $4,177.30 (2 months X $2,088.65) $10,443.24 (4 months X $2,610.81) $1,038.48 (6 months X $173.08) $1,431.00 (6 months X $238.50) $501.30 (6 months X $83.55) $150.00 Broker's Commission: $7,500.00 Less Amounts from New Tenant: ($0.00) Less Security Deposit: ($2,470.41) Plus Attorney's Commission (15%): $3,415.64 TOTAL $26,186.55 WHEREFORE, Plaintiff, Cedar-Stonehedge, LLC, demands judgment in its favor and against Defendant, Dawn 5hughart Realty, LLC, in the amount of $26,186.55 plus accruing interest at a rate of fifteen percent (15°/a) per annum, costs of suit, attorneys' fees, and such other charges as authorized by the warrant contained in the Lease. COUNT II CONFESSION OF JUDGMENT CEDAR-STONEHEDGE. LLC V. DAWN SHUGHART 48. The averments set forth in Paragraphs 1 through 47 are incorporated herein by reference. 49. On or about April 22, 2004, Guarantor executed a Guaranty pursuant to which Guarantor personally guaranteed all of the payments to be made by Tenant under the Lease (the "Guaranty"). A true and correct copy of the Guaranty is attached hereto as Exhibit "E" and incorporated herein by reference. 50. The Guaranty was assigned to Cedar in connection with its purchase of the Stonehedge Square shopping center. 51. Section 8 of the Guaranty provides that all the provisions of the Guaranty shall inure to the benefit of Stonehedge's assigns. 52. Section 2 of the Guaranty provides that Guarantor agreed to pay all sums due to Cedar by Tenant under the Lease, including costs and expenses (including reasonable attorneys' fees) incurred by Cedar for collecting or attempting to collect any item of Rent or otherwise enforcing the Lease against Tenant or collecting under or enforcing the Guaranty. 53. Section 11 of the Guaranty provides that Guarantor may be joined in any action against Tenant in connection with the Lease and recovery may be had against Guarantor in such action or in any independent action against the Guarantor. 54. Cedar notified Guarantor of Tenant's default under the Lease in its Demand Letter, and demanded the prompt payment of all sums owing thereunder by either the Tenant or the Guarantor. 55. Guarantor has failed to cure Tenant's defaults under the Lease, as more specifically set forth in Count I above, and has failed to comply with the terms of the Demand Letter. 56. Accordingly, Cedar joins Guarantor in its action against Tenant for sums owed under the Lease. 57. The actual amounts presently due and payable to Cedar under the Lease and Guaranty are itemized as follows: Base Monthly Rent (March -April): Base Monthly Rent (May -August): Tax Rent (March -August): Common Area Rent (March -August): Management Fee (March -August) Late Charges: Broker's Commission: $4,177.30 (2 months X $2,088.65) $10,443.24 (4 months X $2, 610.81) $1,038.48 (6 months X $173.08) $1,431.00 (6 months X $238.50} $501.30 (6 months X $83.55) $150.00 $7,500.00 Less Amounts from New Tenant: ($0.00) Less Security Deposit: ($2,470.41) Plus Attorney's Commission (15%): $3,415.64 TOTAL $26,186.55 WHEREFORE, Plaintiff, Cedar-Stonehedge, LLC, demands judgment in its favor and against Defendant, Dawn Shughart, in the amount of $26,186.55 plus accruing interest at a rate of fifteen percent (15%) per annum, costs of suit, attorneys' fees, and such other charges as authorized by the warrant contained in the Lease and guaranteed in the Guaranty. Respectfully submitted, Dated: July 10, 2007 BROADS & SINON LLP 1_, By: h 'll T. Moyer, Esquire Kenneth J. Rollins, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for the Defendants, Dawn Shughart Realty, LLC and Dawn Shughart, individually, for the purpose of confessing judgment; Attorneys for the Plaintiff, Cedar-Stonehedge, LLC, for all other purposes VERIFICATION Cami D. Staub, Property Manager of Cedar Shopping Centers, Inc., deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to authorities, that she makes this verification by her authority and that the facts set forth in the Complaint in Confession of Judgment (Money Judgment) are true and correct to the best of her knowledge, information and belief. n~i iDlaoQ~ Date C ~ D. Staub, Property Manager Cedar Shopping Centers, Inc. REVISED 4/262004 SHOPPING CENTER LEASE L&ASINC3 LECiAI. CONST. This lease ("Lease', dated as of MAY 1. 200A, by and between STONEHEDGE CENTER.. LLC ("Landlord") and DAWN SHUGHART REAL'L'Y. LLG ("Tenant"); WITNESSETH: WHEREAS, Landlord and Tenant wish to enter into this Lease on the terms and conditions hereinafter sat farih, Nt,?W, THEREFORE, in consideration of the foregoing, and the mutual covenants and agreements contained In ibis Lease, Landlord and Tenant hereby agree as follows: Tenant hereby leases the Leased Premises (as hereinafter deFined) tram l,.andtord and Landlord hereby leases the Leased Promises to Tenant upon, and sub}ect ta, the farms and conditions hereinafter set forth in this Lease. 1. Basic Lease Provisfons.and OeBnlttons. In addition to other terms defined !n this Lease, the •following terms whenever used fn this Lease with the first letter of each wont capitalized shall have only the meanings set forth in this Article, unless such msanlhgs era expressly modified, limited or expanded elsewhere herein. (A) Shooolnc Center Lacatfan: Depicted on Exhi6lt °An, faceted in Stnnehedge Square a~ rlisla, PA 5fta No.: Sj?AC10751 (8) Leased Premises: The premises Identlfled as Ptot " 27° shown hatched an F,chibit °A° (see Article 2). (C) Floer Area: 1.750 square feet (see Article 2), (D) Lease Commencement Date: The date this Lease Is fully executed by Landlord and Tenant (see Article 2}. (E) Rant Commencement Dat&:. ~ days after the !.ease Commencement Date (sae Ankle 2}. (F) Lease Term: Commencing on the Lease Commencement Date and ending at 12 noon on the Expiration Data (see Artkie 2), . {G} Expiration Date; The last day of the calendar month In wh{ch occurs the 3"~ anniversary of the day immediately preceding the Reni Commencement Date {see Article 2). (H) Base Rent Schedule - Orioinal Temt (sea Article 3): Lease Annual Monthly Year Base Rent Installment 1 $23,625AD $1,968.75 2 $24,333.75u2,D27.8i 3 $25,063.76 $2,088.65 (1} Tax Rent: As provided In Article 5(B}. {J) Common Area Rent- As pravtded In Artlcte 8(D). (I~ Pereentane Rent Rate: N/A (L} Security Deposit: $2,470.41 (see Article 8). (M) Permitted Use: Restdentlal real estate office and for no other use ar purpose. Tenant is expressly prohibited from operating as a hant<, savings and i 4/26/200A C8 C:l9eatcllentll'EMP1Lease (i-44QO~10awn Shughart 1 Q75.da~ loan assocfa8on or any other Mancial institution providing retaU 3@fV1C@S. (N} Landlord's Native Address: See Artlcl~2~4 (0) Tenants Notlca Address; (0-1 }Tenants Bank Account: See Article 3(A} 3333 NEW HYDE PARK ROAD 5tJ11-E 100 P.O. BOX 5020 NEW i•{Y01_ PARK, NEW YORK 11042-0020 DAWN SHU~HART REALTY, LLC 805 AOXBURY ROAD NEWVILLE, PA 17241 Name of Bank :1'YI~-T ~'~-' Account Name: 983 [o i2dZ ~>' Account Number :_ S v-t~--~ca.{}k Lt,C autin • r73~3 Bank Address : 50 + aWf 1'}a'hG~' t,~sl(, 0-10 {P) Brokers • NONE Tenant`s Teleahont3 No.: Tenant's Fax No.: Tenant's Email Address.: Tenant's Business Name: Tenant's Contact Parson: FOR INFORMATION ONLY (717) 580-7130 (717) 776-2321 Dawn & Associates Realty Guarantorfst: Dawn Shughart 605 Roxbury Road Newvllle, PA 17241 The following riders and exhbft{s} arehereby lncarporated Jnta this Lease and made a part of this Lease for aft purposes: Rtders; Rfdar "A" General Lease Provfslons (sat forth fn Articles 2 tfiraugh 29). Rider °B° Specific Lease Provlsians (beginning with Article 30). Exhibits : Eat i it " ' - Authorization Agreement for Direct Debit Exhibit'A" - Sit@ Pian Exh1611 "B" -Intentionally Deleted Exhibit "B-1" - Contractor's Indemnity Agreement tN WITNESS WHEREOF, the parties hereto have executed this lease under their respective hands and seals as of the day and year first above written. WITNESSES TO LANDLORD; LANDLORD: STDNEHEDGB CENTER, LLC By; MART Limited Parlnershtp, Sols Member By: K1mEast Real Estate Investment Trust, General Partner ~p ~ ~~: ~~ f-d'f! Print Name: (c rat~ea~aei J. Flynn L~ _ Title: resident ' Date Stgned: ~ 1 111d ~ ~~ a 4128r2fl04 C8 C:l~ea~CUenriTEMP~Laese (t-4940D1 Dawn Shughart 1075.tloc WITNES STOTENANT: S f tPi.Z,p TENANT: DAWN SHUGHART REALTY, LLC By: ~ ~_ Narne• N ~ Tltle• O LU N Date Signed: o Federal Tax I.D. Na.: - ~ c '~- ACKNOWLEDGMENT FCR LIMITED LfABiLITY COMPANY STATE OF ~~.t~na~f l ~`""~ 1J, ) ~s: COUNTY OF ~~) ~~ Before me, the undersigned, a Notary Public in and far iha State and un afo esald, an officer duty authorized to take acknowlsdgrnents, personally appeared u.t+ d known to me to be ilia person described in and who as (7 u9ri.~.l'' of DAWN SHUGf CART REALTY, LLC, a Ilmlted Ilabllity company {the "LLC"), exeauted the faregoing Instrument on behalf of the LLC; acid f he acknowledged before ma that he executed this instrument as a member of the LLC In name of and on behalf of the LLC; that this act was done by authority of the LLC for the uses and purposes set forth In the Instrument; end that the foregoing instrument is the free act and deed of the LLC. ~ IN W]T,~tES WHEREOF, I have hereunto sat my hand and affixed my otifcial seal, this O day of ~-~1 2004, fn this State and County. My Commission expires: c Notary Public ~~ts~t {Natarlal Seal) SRLSHAA, u~, Hor',Rypu~ H EXPIRES~D~ PA 4/2fi72004 C8 C:\sea\cllentlTEMPILease (1-49~fl0) Dawn S}wghart in75.~ou 1 itm>~It A ' ~ THIS R A 1S ATTACHED TO AND HEREBY MADE A PART OF THE LEASE 5 {SEE ALSO RIDER HI. 6 2. l,cased Prenii9es. Perm and Lease Year. The Leased Premises is deemed to contain an 7 amount of square feet of space equal to the Floor Area. The Lease Term shall commence an the Lease 8 Commencement Date. Tenant's duty to pay Rent shall commence on a mmeacrmen e 9 atwithstanding a forogaing, Tenant shall pqy the Best month's lr3staBment of Rent on the executlon 10 hcieot, which amount shall be applied as a•.credit against such first monthly lnstaIIment as and when 11 due (and promptly refunded lf, for any reason other than Tenant's default this Lease should be 12 terminated by reason of aolroceurrencl: of the Lease Commencement Date). The Least Tam shall • I3 expirt without notlce on the E:cptratlon Date. On request. Tenant shaD promptly deliver to Landlord a 14 statement 1a recordable form spedCpirlg the Rrslt Calaareacement Date and the Explrattea Date. The 15 first Lease Year shall commence on the Rent Co~encemerrt Date and tad am the last day of the I6 calendar month !n which occurs e t anniversary a~ a ay a lea y p~d~ig twee "t 17 Commencealerit Date. Earn succeeding Lease Year shall be each successive twelve {12} month period. 18 19 ti. (A) Haso Rent. Tenant shall pay Base Rent at the annual rates spetdlled In the Hasa 20 Rent Schedules to maathly instaDnieats paid in advance on the @rst day of each calendar month !n 21 the amount speclIIed is the Hase Rent Schedule. If the Rent Commencement Date is not the first of 22 the month, the Base Rent far that month shall be pram#ed. Should any Lease Year contain more ar 23 less than twelve (12] months, Hasc Rent and other charges for such Lease Year shall be appropriately 24 prorated. In addition, Tenant shall pay Landlord as additimlal rsrit each month throughout Lease 25 Term including renewal terms, on the same date that monthly payments of Base Rant fe due. an 26 amount equal to four (446) percent of the Hass Rent that is payable for that month, es a managanent 27 fee to Landinrd. All other payments to be made by Tenant pursuant to this Lease are in addition ib 28 Hese Rrnt Tenant shaII pay Hale Rent and oWcr Rent to Landlord or irs designated agent at the 29 address Landlord designates without Landlord maldag anp demand. However. Tenant herelrv 34 autttgrizes Landlord to debit Tenant's Hank Amount as set forth in Artlete IEO ]1 about on he tIrst 31 day of each month in advanre far the full amount of such monthly Rent vavment thrn due. Tenant 32 shall malnl8in suiIlrlent Cunds in Tenant's Bank Account at all tlmes during the Lease Term to enahtg 33 Landlord to debit such accaun~far the monthly Rent that duo the Cailure of which shall constitute a 34 default For the failure ~p,~Rent Slmultanea3,igly with T~3~nt,'~eeect*hon oft„i4 rpe~a T~~ehall 35 camolete and submit to Landlord the authorizatian form attached hereto es Exhtbtt "1" tocrcther ~vlth 36 a voEded check from Tenants Bank Account. The obllgatlon to pay Base Rent and other Rcpt is an 37 trrdependertt, uncand[tlonal covenant. 38 39 ~) Additional Rest Best Rest and aA other payments required to be made by 40 Tenant (iududing, but not Dratted to, ~eexiage- Tar. Rent end Gammon Area Rent) shall be 41 deemed to be and are included (n the term "Rent", which shall be due and payable as demand or 42 together with the next installment oC Hose Rrnt, whichever first occurs, unless another time 1s 43 expressly provided for payment Landlord sbaD have the sable rights and remedies for son-payment 44 of any Reat or eny Security Deposit as for anon-payment of Hase Rent Tenant shall p~lr to Landlord 45 any tax or Dcease fee measured by Tasant's Rents receivable by Landlord; these taxes shell be paid by 4b Tenant each month with monthly payments of Rent. 47 48 {C) Late Beat Any Rent or Security Deposit not paid when due shall bear tnterest on 49 the payable amount from the date when due unto pa[d at the Default Interest Rate (see Art1de 24(H)); 50 in addition. Tenant shall pay Landlord a Fifty {$5Q.{10) Dollar late charge for each werdue~payment 51 52 {D) Notwtthstanding any allegsd defense; countrxdatm or a6aet against Rent, Tenant 53 shall continue to pay Laridlard'all Rent faithfirlly when due, hlduding during the continuance of any 54 dispute ar Eegal action, sub)ect to reimbursement If dtncted by the Court Tenant hereby consents to 55 the entry in any court action oC an order requtrirlg Tenant to make Rent payments during the 56 pcndoncy of the lawsuit AD Rent due to Landlord under this Lease shall, unless and to the extent 57 expressly otherwise provided herein, be due and payable without any notlce, demand, offset, credit, 58 deductlan or abatement 59 60 4. ~ 61 67 ta~L~3-c'3 aw cor^^rco• °68B ~tS"it:. 3-.•n .. .. r..jai...cs--c~l'e-eiHe13~--~-iF~FiE.§ 63 ~l~ler-~ 64 65 _ s9 5eies"•--rsea~is=tee ~_o_•_ :r •'-_ rFiees-el}a~•ged-fee-a}i 66 i~ierekie~la~Eseaad-e ed-Er~er-fie ses~•;=ad-#aEer-set-s~~ 67 eEl~tei:-a~ 68 eased 70 sel~! d-#ses-ea=-eEs&wli ~ l~a#er, 71 e - 72 dtelsl • g-shoo-~lst 73 - xwial~sl5-iael~ edsleted 74 svr§sege - sterfler~-fas 76 r , - et-Mess-##ieet-erd~~ ~~Y 77 -pr~wlaa fly-a~ld _ o. ,~ +r~ro• e:,a ~,t C~aen~dleN\TEt.U'~Lme {3-390001 Dn*~a Shu[hntt 107II.tlae C8 Fbrm 407 t 1 3 4 5 6 7 8 9 la 11 12 13 14 15 16 17 18 I9 20 21 22 23 24 25 26 27 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 ~8 49 SO 51 52 53 54 55 56 57 58 59 60 fit 63 64 65 66 67 68 fig 70 7i 72 73 74 75 76 77 78 79 80 `~ o - daded~r-mess Sales-es~div~t~-e t$cfleFS-er--ems.-~.~e>~geF#he sePtSee~eae~~ ll r (D) statements. ~et~,, ~~~y` u C-~F866-b~6-~9P-~3@~-E}351~r-~A avmaetif7 i ezs'(~ s. T~ (p.~l 'Taxes" 'shall 'mean and inilude: • real 'estate 'taxes; spectaI and general assessments: water and hewer rents and charges including canntetlon or hoolaip charges: govemmentaI license and permit fees; charges for public or private easements benefiting the Shopping Center, faces on other areas made available for the common use or beaeflt of tenants; and all other governmental impositions and charges (extraordinary as well as ordinaiy, foreseen and' unforeseen) which are either a lien an the Shopping Center or which are charged, levied err assessed on, or imposed In rnnnectton with, the ust, ocevpaacy or possession aC the Shopping Center, and/or which appear as a charge on a tax bill given to Landlord by any oillcial ta;dng authority; and also: taxes, license fees or other charges measured by the rents receivable try Landlord from the Shopping Center, occupancy taxes, rent taxes or similar taxes; interest on Tax installment payments; and casts, expenses and fees {lacludtng attonseys` and other experts' fees) Incurred by Landlord in contesting and/or negotiating Taxes with the public authorities (regardless of the outcome}. IC any method oC taxatlon prevailing on the date of this Lease is altered, so as a substltute for the whole or any part of real estate taxes there is levied or assessed a different kind oC tax, the different tax sheIl be dtemed included In 'Taxes". However, 'Taxes" shaIl aot tnclude any lnherttance, estats, succession, transfer, gift, Iranrhis~ or corporation tax, or any nit income tax, proAt tax err capital tax imposed on Landlord. A copy of an ofSctai tax bill with respect to a govemmentai tax or assessment shall be conclusive evidence of the amount of a Tax. U the Leased Premises is located in Indiana, Ohio, Qllnols or other )urisdictlon wherein fasts arc billed or are payable in arrears after they have accrued or become a lien, then the taxes that are payable or become a lien durhrg the calendar year in which the Lease Term 1s in effect shall be included to the deflnltlen of `faxes' shared !n or payable by Tenant according to the provisions of this Artlcle even though the payment thereof relates to a Qscai taY period in whole or in part occurring prior to the commencement otor afttr the end aC the Lease Term. (H) Tao Rent. As additional Rent Cor each year of thLs Lease (herein called 'Tax ftent'7, Tenant shall pay to Landlord, in the manntr hereinafter described, the product obtained by multlplying the aggregate amount oC all Taxes payable by Landlord Car the then-current calendar year (or other ilscal or accounting year selected by Landlord) try a fraction ('Tenant's Flactlaa"}, the numerator oC which is the Roar Area oC the Leased Premises, and the denoavnator of which is the n-a o/^-slot mss mi ct.""kumt~rr~artt~ urspoo~ natty, ShuQ~~ 1o76.dee ca Forst iD7 e1~1#ie-h e-er~ ,n.._... rr r __at6T~--6e3i1~E6--833--9F1-@A~--I:I3E-e~1A° ~,_ . _._u_ ~_ ......fie e-a~gei~ex~-aF s ~cke 1 total square foot ground IIoor area which !s leasable; for space {on the first day of the month in ? questraaJ lrtside all the buildings of the Shopping Center, Notwithstanding the foregoing, at 3 Landlord's option Tenant's Fraction may be appropriately adjusted with regard to Tax Rmt and/or 4 Carantan Area Rent to rxclude @'or7r the dtmamtnatnr thereof any land and/or building(s) bt the 5 Shopping Center leased to ar occupied by third parties with separate tax lots or parcels for which they 6 directly or indirectly pay taxes and/or who' ere rtsponslble for maintenance of portions of the 7 Common Areas; provided that in such event the Taxes ar Common Area expenses paid by such third 8 parties shall also be excluded hi the computafion of Taxn and/or Yearly Common Area Casts. On 9 the first day aF each month 1n advance, Tarrant shall pay m Landlord one-hve3ttir (I/12th) oCTenants 10 annual share of Tax Rent, based va Landlord's estimates. Tf after the end of a Calendar year (or other 11 accounting period used by Landlord) the total of the monthly payments by Tenant fur the year has 12 exceeded or !s less then Cho annual Tax Rest actually due. then an adjustment shall be made w[fh 13 appropriate payments to or repayment by Landlord. If the amount of any Taxes payable during the 1~ current year shall not yet have been hided by the taaYng authority, the monttily Tax Rent then gayabie 15 shall be based oa the amount of the correspandbag Taxes for the lmmedlately preceding Tax year, 16 subject to lmmediatt adjustment (and payment of the adjusted amount by Tenant) when such Taxes 17 are billed or determined, 18 19 (C) Ot3ar Taxes. [n addition to Taa Rent, Tenant shaII pay in the mtrrety: all taxes 20 attributable to its signs, pcrsanal'propesty and ]easehald interests; all taxes allocable or attributable Zl many Improvements made by Tenant to the Leased Premiers; all occupancy taxes or other taxes oa 22 its right to occupy the teased Pi'daYisesi a]I taxes on its' Rent (irirluding'sales tams oa rents IF the ?3 Leased Premises is in Florida ar in any other jurisdiction imposing a tax on rents}; and other taxes 24 imposed an tenants generally. ZS ' 26 8. Security Deposit. On TealaaYs execution of this Lease, Tenant shaII pay ffie 5extnity 27 Deposit as security for the payment oC Rent and Tenant's performance and observance of this Lease. 28 if Tenant defaults under tills Lease, or defaults under any other ]ease or agreement between Tenant 29 and Landlord ar en alIlUate of Landlord, Landlord may, without prejudice to any other available 30 remedy, apply the Security Deposit towards tw+ring the default and compensating Landlord far lass or 31 damage arising from the default At the eaepiration of this Lease, if Tenant is not in dctault or 32 otherwise Uable to Landlord, the uaapplled balance aC the Security Deposit shall be returned to 33 Tenant. Tenant expressly agrees that Tenant shall have no right to apply any porlioa of the Security 34 Depastt against eay of Tenant's pbllgationa to pay any Rent hereunder and, if Tenant shalt seek to sa 3S apply such Security Deposit, Tenant shall em demand pay liquidated damages to landlord in a sum 36 equal to two {2) times the amount oC any such unpaid Rent. Y at any t+*~~ Landlord agpltes part or all 37 of the Security Depastt, Tenant shell pay to Landlord the amenmt sa applied, thereby increasing the 38 amount of the Security Deposit, so landlord shat( have an hand the full original Security Deposit at 39 all times. U"Landlord transfers this Lease and Sexurity Depastt to a transferee, the transferor shaII be 40 released from liability with respect to the Security Deposit or its return to Tenant: Tenant shall )Dote 41 only to such transferee with respect thereto, Teaaat shall not mortgage, assign {except m connection 42 with an assignment of this Lease by Tenant whirls is otherwise expressly permitted by the terms of 43 this Lease) ar encumber it9 interest in fhe Security Deposit, and any attxmpt to do so shall be void. 44 On any transfer by Tenant of its Interest 1n this Lease, the Security Deposit shall be deemed 45 transferred la the assignee. In case of Teenant's barrlauptcy, reorganlzatltm or other slrailar 46 proceeding, the Security Deposit shall be deemed applied first to payment of unpaid Reat far periods 47 prior to institutlan of the proceedings. 48 49 7. Caastsoction• Condition of Premises• Ownershiv of r.,or,n~tians If Tenant enters 50 the Leased Premises before the Lease Cammesrcemmt Date (but Tenant shall have: no such right 51 except es may be eaipressiy provided herein or with Landlord's prior written consent), Tenant shall pay 52 for a][ utilltres used by It and dcfrnd, indetnnify and hold Landlord harmless hum ell Uab1Uty which 53 arises out oCTe.nant's possession, use or occupancy during that period, and provide Landlord with the $4 trtstrrance referred tv in Article 11(B), and the Indemnity hr Article 11(A} shall apply and all other 55 provisions of this Lease shall apply except (unless otherwise stated herein) the obligation to pay Rent. 56 Promptly following the Lease Commencement Date, Tenant shaIl (subject to the provisions of Article 57 10(E) and all other rdevaat prvvlaions of this Lease) lbd:trre and do all othu work, including 58 installaion oC en attractive exterior Ughted sign above its entrance {see Article 10 (D)), in order to 59 prepare the Leased Premises for,bitsiness operation, and' complete its work, futIy stalC and storlt its 60 store, and open for business'preiihptly. Prier to operating 1ts'businrss, Tenant shall obtatn a 61 permanent certWes3tc of occupancy (ar local equivalent) for the Leased Premises from the local 6? govrmmeat agency having jurtsdictran, end obtain final lien waivers far all wort[ performed by or on 63 behalf of Tenant and forwarri copies to Landlord. Tenant shall, at i!s sole expense, in doing any work. 64 making any installations, or in using, occupying ar conducting business at the Leased Premises, 65 comply with all present and future laws, regulations, buileiirig codes and/or Lire codes appUes3ble to 66 the Ceased Pi•eaaises or to Tenant's' use or acctipancy ar business operations, including those: that f 7 relate to installation, maintenance, upgrading, repair or repU;crsmtxit of sprinkler systems, and Tenant 68 shall defend, tndernnify and hold Landlord harinlese from ail losses, damages, claims, Uab131ties, erosts 69 and expenses [including legal fees) arising out of any failure to do so. Tenant acimawtedgea Landlord 70 has made no represeoztatlans, and that Tenant has earnducted aII inspections tt deems necessary 71 (including envirortmentel), and Tenant accepts the Leased Premises sad all the equipment, apparatus, 72 plumbing, heating, atr conditioning, electric, water, waste disposal and other systems relating thereto 73 and the parking Iot and the other Gammon Area of the Shopping Cents ;95 IS". Laadlard 45 not 74 obUgated with respect to either the Leased Premtises or the Shopping Center to make any 75 lmprovemeats. ehangcs, lnstallatioas, do any work, make any aitesatlacts, repairs ar replacements, 76 clean out the Leased Premise5, obtain any permits, Ucenses or govemmmtal appr~avals, or speard any 77 money either to put Tenant to possession or to permit Tenant m open for business, unless Landlord 78 has sa agreed expressly !» this Lease. All work other than that tr be performed by Landlord, i<any, 7g shall ire accotnpiished by Tenant Unless speexIIcaIly stated otherwise hr this Lease, it is deemed that 80 Landlord shalt have tendered possession oC the Leased Premises to Tenant Immediately on the signing ~/zs/oa a:ao nae c+,e~~wennzuu~~ (t-+opaol n~w,i sxo¢aan lmsax cs Form itr/ 1 nC this Leese by bath Laadkord sad Teaank Except far signs, merchandise counters or other easily 2 rertlovable similar trade lbt:ttlres installed by Tenant at TeaanYs expense, all altetatlons, deepratlons, 3 additions and tmpravements made by Tenant Eo the Leased Premises sad Including aI1 heating and 4 air-condltloning units, equipment and apparatus at the Leased Premises and other $x[utes such as 5 ceiling tiles and grids, lighting ib-turrs, electric pared boxes, plumbing, papers, floor and wall 6 cavering9, alarm systems, @ghts, toilet n,fi,.n.r:, partitions, doors and utllltles shaII be deemed 7 attached to the freehold and be Landlord's Property. 8 9 e. CammnaArea. 10 11 (A) SubJect to subparagraph (C) below, Tenant and its employees, agents, and 12 customers shall Nava the non-exclusive right to cite use or benefit of the Gammon Area to the extent 13 and its the manner reasonably designated by Landiora. Except as otherwise speciIled fa this Lease. 14 Landlord agrees to make all necessary repairs sad maintenance to the Cosmrian Area to krep same fn 15 goad condttlon, including without limitation sweeping and removal of snow, lee and refuse, .and I6 landsraping maintenance. I7 18 (B1 "Gammon Area" >s hereby deilried as the areas, equipment and faciifttes of the 19 Shopping Center or of any other land ar property made available by Landlord for the safety, benefit ar 20 camenfenee of tenants ar their employees, subtenants, customers or invitees. including (as 21 lllustratlans and not ir7 limttatlanl: parking areas. drivewayB, inset aervtceways, sidewalks cud Garbs; 22 entrances and e:dts from the adjacent streets; traffic Sights, trai$c islands, landscaged areas: metes 23 rooms outside ladtviduai stares; fencing; lightlrig fad]itles; sprhslder system serving landscaped areas 24 or buildings; sewage system outside tenants' stores; roofs, gutters and downspouts and the cxtczior of 25 outside walls (excluding storefronts] o! bulldings twtthaut implying Tenant may use the roofs or 26 outside walls}; directional or safety signs; Landlord's pylon signs (but not individual tenant panels) 27 and sign panels which ideat(fy the Shopping Center. Tenant acimowledges that the Ca~mmon Area 28 may also be used try acaspants and/ar invitees ai prapertles adJoining the Shopping Genies, whether 29 ar not owned, leased or managed by Landlord. 30 31 (C) Landlord reserves the: right at any time and [lam time to time to change ar reduce 32 or add to Lhe Gammon Area Carnmon Area shall be under the exclusive control and management o! 33 Landlord (including the hours that pazling area lighb are ][apt on). Tenant and t!3 ~ployee9 shaIl 34 park their vehlrles aaly in areas Landlord desigaetcs for employee parking; i< alter one {1} violation 35 nptice is given to Tensest a violation recurs by Tenant ar its employees paring vehicles is other than 36 the employee paring areas, Landlord shall have the right to tow such vehicle at Tenant's expense 37 and/ar Icvy an assessment agatast Tenant of Forty ($40.00) Dollars per day far each vehicle. Tenant 38 shall not permit trucks or delivery vehicles used by it to be parleed fn the Gammon Area except wheat 39 Landlord persaits. landlord may impose parking ~hn oes by meter or otherwlsa and wag close parts 40 of the Cattmion Area for such time necessary !n its opinion to prevent a dedication or accrual o! rights 41 in other persons, or to discourage non-customer psrklag. Izndlord shaIl not be obligated (although !t 42 may do eo at its option) to tees the Common Area 1IIumh~ated to any extent a13es' 10:00 P.M. or on 43 any Sunday or legal holiday. 44 45 (D) Gammon Area Rmt. >n the manrtcr herrlnaRer described, Tenant shall pay its 46 share of "Yearly Common Area Costs" (hereinafter defined). On the first day of each month in 47 advance, Tenant shall pay to [.andlord, as additional Rent (herein caller] "Gammon Area Rent's one- 48 twelfth {1/lath} of Tenant's annual share of Landlord's estimated Yearly Common Area Casts, based 49 an l.andlard's estimates. Tenant's annua] share shall be dcterrnirscd fry multiplying the Yearly 50 Camman Araa Costs by Te:nent's Fraction (defined in Article 5(13}}, Far a portion of a calendar month 51 at the beginning of the Lease Term, Tenant's Common Area 12en# shall be prorated far that month. 52 53 {E) "Yeazly Common Area Casts" shall mean and include all costs and expenses 54 incurred by Izadlord dLairig each twelve (12) month period selected by Landlord for repair, 55 replacement, painting, maintenance, protection and operation a! the Cowman Area and for lnsuranee 56 carried by Landlord with respect to the Shopping Center, and insurance-related costs and expenses, 57 including (by way of examples sad not In llmltatlan) casts or exgrnsea relating ta: pazking areas, 58 siaewalks and the l0ee: storm water and sewage drainage and sanitary control; removal of snow, ice 59 and refuse lincluding use of trash compactors); gardening and land'scsptng; roof repairs; insuring 60 bulldtngs and improvements and insuring for badffy injury and property damage liability, including 61 but not llrrdted to insurance premiums, administrative costs, fees, lasses within deduetlples and/ar 62 selFtnsured retentions far All-Risk Property Insurance including I'faad'and Earthquake, I3a1Jer & 63 Machinery, Loss of Rerit';,•Crime; Genera] and Umbrella liability, Workers Compensat[an, Automobile, 64 oriel such other coverages and limits as Landlord in its sole discretlon deems reasonable to the 65 circumstances, all at the fair premiums (which may be at the manual rates applicable La the Shopping 66 Center), as it the Snapping Centef tivas the'only propeity owned by Landlord (biit nahvlthstand'irig the 67 foregoing, such insurance may be obtained through planket polides as long as Landlord makes a 63 reasonable allocation of premiums to the Shopping Center, which allocatlan may be based, faster olio, 69 upon a uniform per square Coot rate for all or aubatantlally all property owned by landlord and 70 alfillatesJ; mntmlling or eltmtnating puddling or flooding; llghtlng fincluding dectrfc cast and 7I maintenance, repair or replace:mcnt of fixtures, poles and replacement of bulbs); depredation of 73 property awned or rmta] paid Cor maintenance machinery and equipment; taxes or fees payable by 73 Landlord Coe any pylons, equfpment or other Cactlttles; costs of security patrols, directing parkng and 74 polldng the Common Areas. eompensatton to personnel engaged to managing the Common Areas and 75 implementing services related thereto; plus fiftern (154bJ percent of the Yearley Common Area Casts as 76 a Oxed administrative fee for Landlord. landlord may cause any services such as swaeping, snow 77 removal, repairs, etc, fa be provided by independent contractors, end the fees paid shaIl be part o! 78 Yearly Gammon Area Costs. 79 n-7 4/29/84 8:40 MI C1uaWlmr~TEl.IPVraee n-18COal assn Siwphart tD7Gdoe C9 Farm AQI 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I8 19 20 21 23 24 ?5 26 ~7 28 29 9(j 32 33 34 35 36 38 39 40 41 42 43 44 46 47 48 49 SQ 51 52 53 54 55 ~6 S7 58 59 6() 61 62 63 64 65 66 67 68 69 7a 71 72 74 7$ 76 77 78 79 fF) Alter the end of each accounting period, Landlord shall furnish a statement of the actual Yearly Cammoa Arm Casts, It the statement shows that the aggregate oC TenanNs monthly estfrnates paid by Tenant during such year was less than Tenant's Common Area Rent payable, Tenant shall pay the balance due to Landlord within tea (10) days after receipt of t]xe statemenE: and it the statement shows that the aggregate paid exceeded the Common Area Rent payable, Landlord shall either refund the excess or credit Tenants next accruing Common Area Rcpt, TCnaaCs failure to give Landlord written notice of airy objection to the statement within ninety {90) days after the statement is sen t shall conatttute a waiver of any objection or laqutry Tenant may have about the statement or Cor anY csarninatlon of Landlord's records. Tenant admawledges Landlord has not made any walsanty, agreelrrent or representatlaa of anp IoYtd as to the actual dollar amount aCYearly Gammon Area Costs or Tenant's dollar share thereof. Use of Premises. (AJ Tenant agrees that the Leased Premises wQl be used and occupied by Tenant and/or any assignees, sublessees or other occupants (which reference to assignees, sublessees and other occupants shall not be deemed to glue Tenant any rights to assign or suhkt not spedflcally set forth in this Lease), or permitted to be used and occupied by Tenant or arty other such parties Daly for the Permitted Use, and for na other use or purpose. Without Iimitatlan of the foregoing, no sale or dLsperlsing oflattery tlrlrets, other gaming tickets, liquor, wine or beer shall be permitted. (sj • Neither Tenant, nor ate. stackilalder awning mare tbaa five (544) percent of Tenant it Tenant is a rnrporatlon, nor nay person, carporatlon, partnership, bust, other lfrra or entity which controls or is canlralled by Tenant ar is under. common control with Tenant, nor arty substdlary of Tenant, nor any hustnesa organizatlan aiHllated wttlr Tmeat (including but not Iimitad to any so-called "parent company" aC Tcrlaut), nor any guarantor of this Lease, wlll, directly or indirectly, crniduct bustnesa at, ar sell from, any other place situated mlthin a radius of three 191 miles of the covenant is peicetlt a$E wauua acnant cs aermlllen to Sell m' eagegC 1ri any • ila the Leased Premises. to addltloa to, and not iii far breach of the foregoing covenant, so long as this (/~/ Base Rent shall be increased twenty.-flue (2696) • ti... r ~.... ~ r~ r~ss.,e.,_,.,__aa,a,-.. a.. sA_~.. -- _ n__ ,nom., --- -- _- '_.---~'.O h,uis,or- - _ ___ _ __- _ -n v _ c, „ a ~. t t1;Er-~1aaEGa-a~ .t a lot, r -L a n fC} Teaaats Hasiaess Operattoas. Tenant shall keep the Leased Premises open and operated continuously for business not less than from X99 ~Q A.M. to 8+98 7:00 P.M.-eae#r•••da~fe~ ~""` =''- ;`; '""" - -'-°'"- Monday thraur<h Thuradar. 9:00 A.M to X5.00 P M on Friday' and 9•DO +--•--- A.M. to 2:OD P.M. Saturday. Tenant will continuously operate its buslaess theretrt with diligmce and ~~ esrfuIIy staffed with personnel at the Leased PrtrR19G4a..anrLaa ..,, w...,. s,.,,,. s«.,..t...a ...,«4, t ,, ~ ., Tenant agrees for its part: no auction, fire, bankruptcy, going out of business ar simtL•lr sale will be conducted or advertised; na merchmldlsc will be kept, displayed or sold or business soLdted in the Shopping Center cutslde the Leased Premises; na nuisance will be permitted: nothing shall be done which is unlawful, o[feasivt or contrary to any law, ordinance, regulation or rcquirasleat of any public authority, ar which Wray be injurioils to ar adversely affect the quality of the Leased Premises or the Shopping Center, na part of the Leased Premises (cspedally the electric and plumbing systi:ms, the floor and walls) will be overloaded, damaged ar defaced; na holes will be drllied to the stone or bririnvork or in concretr, no emission of any objectionable odors, sounds or vtbratlans will be permitted. Tenant shall procure ai! licenses and gerrntte required for the use or occupanry oC the Leased Premises and the business being rnnducted thtreln; the storefraat, show windows and signs will be repaired, kept clean, to good canditlon and lighted; all merchandise and other property will be delivered to or removed from the Leased Premises odiy by the rear entnriice; all garbage, waste and refuse wifl be kept stored temporarily inside the Leased Premises and then regularly removed at TcnanCs expense and, if Landlord opts, only by a contractor designated by Landlord, provided its price is competltlve. Tenant will comply with the requirements of Iaw and any requests of goverameatal agendas or Laadlard m its rerycling program, tf any. Tenant will cooperate with Landlord and other tenanks of the Shopping Center in promatlons and advertlstag, and will become adues-paying member of any merchants' association (or similar organization) of which fifty (5046) gerceat or more of the tenants arc members; or altematlvely will became a partldpant of and shall pay its prorate sham (based an Tenant s relatlve stone size) of arty expenses incurred by a rtlarkeling or gromotlon fund program now or hereafter established by Landlord, ff arty. Tenant shall comply with all eavlronmental statutes, regulations ar ordinances now ar hereinafter enacttd by gbvtrrmment authorities, Tenant shall not permit the release, emission, disposal, dumping or storage of hazardous wastes (as defined In any such laws) into the septlc tanks, sewers, or other waste disposal facilitles of the Shopping Center or auy4vbere in the Shopping Center, or pcrnut same to be brought into the Lensed Premises at any time, and the provisions of this sentence shalt survive the e+cptratlon aC the Lease Term. Tenant shall keep the Leased Premises free of rodents, vermin, tassels and other pests, and provide regular exterminator services at its own expense, and, if Landlord opts, only fry an extermirtatar designated by Landlord provided its price is competitive. Tenant agrees that nothing 1v1U be done or omitted whlrlr may either prevent the obtaintag by Landlord or other tenants of insurance on any part of the Shopping Center or on any personal property theseaa, or which may make void or voidable arty such insurance, or which may create any extra premiums for any insurance carried by Landlord ar other tenants. Tenant will comply with all requirements and recommendations of Landlord's and Tenant's Insurance companies and any rating bureau or similar organization, iaduding maintaining and servicing fire exttngutshers, M8 4/18!04 9:44 Abl C:\ara\c9mt\7Eh1[hfeaee 11~49QOa1 Darvn bbuC,wl 1a76.dae C8 Form 4W 1 2 3 4 5 6 7 9 10 11 1? 13 14 I5 16 17 i9 2Q 2I 22 23 24 25 75 27 28 29 30 31 32 33 35 36 38 39 41 42 43 44 45 46 48 50 51 53 54 55 56 57 58 59 60I 62 64 66 67 68 69 70 71 72 74 76 77 79 30 •{D} Tenant agrees ter: ast-~t~ads-Ea-el~egf~F ~eags-r~ not sell goods, solicit business or distribute advertising matter is the Carnuion Areas; not permit preparation of food err any cooidng, baking or Crying to the Leased Premises. Tenant shall keep the sidewallss. curbs and ramps (if any) adjacent kn the Leased Premises (and also all delivery areas, ramps, loading areas and daclo; used exclusively by Tenant) Tn good and safe condttlon and free Cram snow, ice, and nsbbish. Tenant wlll not make err suffer any waste of the Leased Premises. Landlord shall not be llably far the act of any other tenant or person avha may cause damage to or who may interfere with TenanCs use or occupancy of the Leaned Premises or Tenant's bnstaess. 10. (14J IItIlitless. Teaaat shall provide and pay for its awn heat, air conditioning, water, gas, electridty, sewer, sprinklers and other utilttles, including application deposits and installatlan charges for meters and far ennnsumptlan or use of utilities, Tenant shalt pay its share of sewn charges, if any, reasonably determined try Landlord. Tenant shall keep sufSdent heat to prevent the pipes from freezing. if Tenant receives utilities through a meter which supplies utilities to other tenants, Tenant will pay to laadkird Tenant's proportlanate share, (based on relative square feet size of premises) of the •6ota1 meter rfiarges. If`teaant receives water from Landlord's well Di' other sources made available by Landlord (lastead of from an Lsdependent water company), Tenant shall pay for the water, and all vests and expenses Car the maintenance, repair, replacement and lnstallatlan of tanks, electric casts, machinery, apparatus and facilities shall be included in Yearly Gammon Arta Costs. See Artfcte,,~2 re Utllity Dere atlas. • (BJ I.a~,alord's Ryvairs. Weather permfttlng and sEsbject to Article 25, Landlord ahaII, within thirty (30} days after receiving written notice from Tenant, commence to make repairs, !f accessary, to the foundation. the roof, the exterior of the perimeter demising walls, and the load-bearing structural columns and beams in the Leased Premises. except that If those repairs or replacEinents arise Sour (i) repairs, lastaIlatlons, alteratons, or improvements try or For Tenant or anyone claiming under Terraint, or (il) the fault or misuse aF Tenant err anyone ciaimirig under Tenant. or fill) default under the Lease by Tenant, then Tenant shall make such repairs or replacancnts or, tf Landlord elects, Laadlor<i may pcrforui the work for Tenants account and Tenant shall reimburse Landlord Cot expenses incurred. In determining Landlord's repair obilgatlons, the expression "roof` dots not Include rooliop heating err air condttiorting units or other struchacs or apparatus on the roof serving the Leased Premises, and "exterior of walls" does not include the storefront, arty glass, windows, window sashes or frames, doors, door $•araas or hardware, trim or closure devices, or any part of the interior side of perimeter walls, ell of which shall be Tenant's duty to repair, maintain, and replace. In a~ event, Landlord's abltgatlan shaIl be only to make the repairs for which 1t is hereby obEigated, and Landlord shall not be liable far loss of bustaess, lass aC sales, lass of praHts or far nay cansequenttal damages err fordamage to err Ioss of petaona! property, fixtures or any Iniertar e]ements of the Leased Premises which are Tenant's respvnsiblllty to maintain or repair. • (C) Teaaat'a.Renalss. Subject to Artlcle 10(B], Talant shag maintain and make all repairs and attcratlons of every kind with respect to the Leased Premises {including necessary repla~•**~~ts) to keep it is good conditlan {including the storefionL glass. signs. ceilings, interior walls, Interior side of perimeter walls, floor, Aaar coverings, plumbing, electric, heating and air conditontng, sprinklers and lighting [ixbxres). and do all required by any laws, ordinances or regvirements of public autharlties. From the point they sern the Leased Premise9 exclusively, whether located inside or outside, Tenant shall make all repairs, replacements and alterations necessary LD maintain is good candltion all lines, apparatus, and equipment rdatmg to utlllties (including heating, air conditloafrig, water, gas, electricftp and sewerage}. Tenant shaIl maintain a service contract far the regular seasanat matatrsiance oC the heating, ventllating and air candltlaning ("HVAC") system servicing the Leased Premises'with a rcputablc I3VAC contractor at all•ttmes during the Lease. Additionally, if any air rnndltloning err heating equipment (or other utility equipmenU 1s damaged by vandalism, Hre, lightning or oilier casualty. Tenant shall repair (and if necessary, replace) the equipment: notwithstanding Article 13. Tenant's sole right of recovery shall be against Tenant's Insurers for loss err daninge Co stack, furnihue and fixtures, equipment, improvements and betterments. (D) Silas: Pa3utiaE; Dl'salavs. No slgri, other advertising or any other thing may be placed by Tenant err anyone clairrdng wader Tenant on the exterior of the•Leased Premises or on the interior part oC either windows or doors without Landlord's prior written approval, which shaA not be unreasonably withheld. 'tenant shall not utilize Dashing, painted, neon or moving signs or' lights. Tenant shaII not paint, decorate err mark any part of the exterior. Tenant shall install an exterior lighted sign or signs in compliance with Landlord's specifications and keep the sign(s) {which must first be approved by Landlord in ivritlag} lit to at least 20:00 P.IvL br tn•such Later hour es requested try Landlord, on all days of theyear. (E) Alterations. No alterations, installations, additions or Improvements will be made to the Leased Praot9es by Tenant ~vtthaut Landlord's prior wrttten approval. All instaIIatlons, slteratfons, addltlans and iriipravements. whether by Landlord, Tenant or any other person (except only sign panels and movably trade fB.-tures installed at Tenant's cost) shall become, when made, a part of Landlord's real estate. and on tennlriatlon of the Lease Term shall be surrendered with the Leased Prem[scs >n good canditian. Tenant shall not have the right to remove atgn boxes. Tenant shalt defend. indemrdfy and save Landlord harmless from and against all claims for Injury, lass or damage to person or property caused by or resulting from doing arty work. For any work that inwtvrs penetration of the roof surface or alterations to the sprinlder system. Tenant shaII employ Landlord's contractor. The maintenance of any portion of the roof affected by Tenant's work will be Taunt's responsibtllty, including repair of areas of the Shopping Curter that might be affected dun to water penetnitlon through Tenant's roofwark. MB 4/~/era 0:40 N.1 c:~~dia,c~rctarua,~u.r9ooo~nownstwOwalors.ax cs Form a0~ 1 2 3 4 5 6 7 8 9 10 11 12 14 15 15 17 18 19 20 22 23 24 25 26 28 29 3a 3I 32 33 34 35 36 37 38 39 40 41 42 43 44 45 47 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 69 7Q 72 73 74 75 76 77 79 80 (F] Permits: Liens. All repairs. installations, alteratiops. impravemmts and remavaLs by Tcrsant wiII be done is a gaud and worlcrr+Ar,i+k~ manner, onlp after Tenant has procured all permits. Tenant shall comply with all laws, ardinaaces and regulations of public avthoritles and with all Landlord's and Tenant's insurance requirements sad with insurance inspee:tion err rating bureaus; and the work shall not adversely afTect the strueinre of the building. Tenant shall pay promptly when due alI charges Cor labor and niatrrfals to canriection with any work done try err for Tenant or anyone daliriing under Tenant Tenant shall remove, by payment, bonding or otherwise, tvlthin ten {ld) days after notice. all liens placid on the public record or !n any way against Landlord's [merest or the Shopping Center resulting from eery act of Tenant or from ]afoot or materials being alleged to have been supplied at the request of Tenant or anyone claiming under Tmaat, failing which Landlord may remove such lien and trolled all expenses incurred from Tenant as additional Rent. Tenant shaA protect. defend, save harmless and indemnify Landlord and any fee owner of the Shopping Center from and against all losses, rlwlma, liabilities, LnlLirtes, expenses (including ]egal fees]. lawsuits and damages arising out of eras $m described above. 11. Iademn3ty: lIitsnr3naF. fgl Tenant shall~pmttct, ciefcnd, save harmless and indtsiirilfy landlord and any fee owner of the shopping Center from and against aD losses, c]alms. liabilities, injuries. expenses (tnduding legal fears), lawsuits end damages of whatever nature eithrs (1) e[ahaed to have been caused by or resulted from airy aci, omisstoa or negligence of Tenant or its subtenants, caacesslonaires, employees, contractors end hrvitees na matter where occurring. or (iii occurring m the Leased Premises except !< caused by Landlord's negligence. Landlord shall not be liable wader any rfrn xnatances" for air injnry or anp loss or damage to Or interfaencx with any merchandise, equipment, 8xturr3, hurvture, fur;ri9hings err other personal property err the business aperadons of Tenant or a~+ane In the Leased Premises occasioned by (i) the act err omteslan of persons occupying other premises, err (!i) say defect, latent. err otherwise, in any bullding err the equipment, machinery, utRitles, or apparatus, err (ill) any breakage or Iealtagc of the roof, walls, Roor, pipes or equipment, ar (!v) any bacldrsg up, seepage or Overflow of water or sewerage, or (v) Road, rain, snowfall or other elements or Acts of God. LfTenant makes shopping cart available, the foregoing indemnity provisions shall apply to claims relating to the shopping tarty; and Tenant shaII remove aft shopplag ®rts from the Gammon Area, es often as neee9sary, so that the Common Area she]] remain reasonably free of carts. Ail shopping carts shall be stared inside the Leased Premises. {8) Tenants Lnsurance. Tenant shaII maintain with flnandally responsible insurance companies with a Best Rating of not less than A-ViII licensed to do business in the state where the Leased Premises is located: (i) a caaunerdal gcaerat 1[abillty fasunuace poBcy with respect to the Leased Premises and its appvrteaances {including sign's) naming Landlord as an additional insured with a Iiinlt of not lees than One Million ($I,OD0,000) I2ol3ars; (S) an umbrella liabmty Insurance policy with a itxait of not less than Five Million (S5,ODD,DDD) Dollars, naaziag Landlord as an additional Insured; (ill} an insurance policy to cover heating and air-conditioning units against damage for oae hundred (100%) perceat replacement cost; (iv} as all-risk property fnsurance paliry insuring all merchandise. leasehold improvements, furniture. fixtures and other personal property. all at their n:piaexment cost; and (v) business laterruptlan insunance. Tenant shall deliver these faeurance palldes err certl9cates #hereaf, satisfactory to Landlord, issned by the insurance company to Landlord with premi»ma prepaid On the signing of this Lease and thereafter at ]east thirty (30j days prior to each expiring policy. Tenants failure to deliver the poHdes err certlRcates shaII constltute a default. All paltdes of lrts~,ranr. required of Tenant shall have terms of not less than oae (1}year. I2. Access ib Premises. Landlord shall have the right (but shall not be obligated} [o enter the Leased Freraises upon reasonable notice (and fa case of emergenry without notice] to inspect ac to show the Leased Premises io prospective purchasers, mortgagees ar tenants, or to make any repairs, alteratlons, or improvements, Including the lnetallatlon or removal at pipes, wires and other conduits serYing other parts of the Shopping Center. Commencing six {6} months prior to expiration of the Lease Tenn, Landlord may maintain for Rent' signs on the front or any other part of the exterior aC the Leased Premises. Landlord further reserves to itself the exclusive right at any time to use the roof foundation or exterior walls (other than Tenant's storefront) for pladng of signs err equipment or Cor purpose of additlanal construction. 13. [Yet or Other Casnalt4. (B.) Tenant shall give prompt notlce to Landlord in case of fire or other damage to the Leased Premises. ($) If Ii) the Shopplag Center buildings are damaged to the extent of more than hvcnty-five (2546) pereeut of the replacement cost, or (11} the Leased Premises are damaged to the cctent of more than fifty (5056] percent of the replacunent oust, or (iii) the Leased Premises are damaged and Tenant is not operating for business as required by Article 9(C) at the iliac the damage occurs, or (iv) the Leased Premises are damaged and ]ass than one (3} year of the Lease Term remains unexpired at the time of the fire pr other casualty; thea in any of such events, Landlord may terminate this Lease by notlce to Tenant within ninety (BO) days after each event, and on the data speclRed !n the notlce this Lease shall tenniaate. ff the damage renders the Leased Premises wholly err partially untenantable, there shall be a fair and equftable proportionate abatement of sIl Rent during that period. Unless ibis Lease is terralnated es afortsaid, this Lease shall remain in effect (C} If this Lease is not terminated bl' Landlord, this Lease shall continue to fuA force and effect (Tenenk waives any right confemd by any applicable law to terminate this lease based on the damage), and Tenant shall, immediately on notlce from Laadiord, remove its fixtures, other property and debris as required by Landlord, and then Landlord shall rebuild the Leased Premises to the condition existing what the Leased Premises was originally delivered to Tenant; and an n-io ~neJaa v:ae an[ c~wi~n~ruau~ u-anoooi n.~rn snsrhas ~o7a~tm cs rom,asr 1 2 3 4 5 6 7 8 9 20 I1 13 14 15 17 18 I9 20 21 22 23 74 ?~ 26 27 ~$ 29 30 31 32 3~ 35 36 37 39 40 4I 42 d~3 44 46 47 49 50 51 52 54 55 56 57 58 59 60 61 62 63 64 66 68 70 71 7 73 74 75 77 78. 79 completlon thereof Tenant shall restore Tenant's property and promptly n:apea for business. Tenant shall use the proceeds of any recovery on Tenant's Insurance polides far restoration of improvements made by Tenant to the Leased Premises, and for restoration and/or replacement oC Tenant's equipment, trade R+ctures and inventory, and to cover any business interruption lass. (D) The "rcplac®ent cost" as used In (H) above shaII be deternuaed by a reputable contractor selected by Landlord. I4, F,~imeat Don~aia: fA7 If the whole of the Leased Preavses are taken is connectlan with ensinent domain, the Lease Term shaIl expire when Landlord shaII be divested of its title, acrd Rent shalt be apportioned as of that date. (sJ ff only part of the Leased Premises is taken is connectlnn with eminent domain, and the ground IIaor arcs of •the Leased Premises to reduced by more tharr twenty (2046) perceat and the part remaining shall not be n+aaonably adequate for the operation of Tenants business, Landlord or Tenant may termluate 'this"I,etise by 'giving file other ilottce wtfliin thirty (301 •days alter such taking, etlective as of the date possession of the taken part ahaII be required for public use: sad Rent shall he apparttaned as of that date. (C) Tenant shall not have any r~sim for an award based an fire lass of its 3eaechatd estate. Landlord shaII be entitled to all damages !n conncctton with eminent donlsin. Tenant shaII execute say Instrument required by Landlord far the recovery of damages and to remit to LandIard any damage proceeds recovered, except, however, Tenant may recover for Itself damages for movable trade tLetures which were Installed by Tenant, provided Landlord's award is not reduced thereby. 18, Deianlts acrd Remedies. (Al Any one of the Follotiviilg ahaA be a default try Tenant: (1} if Tenant fails to pay Rent, Security Deposit ar other money, or to provide a certlScate of insurance or to provide an estoppel certificate a9 required bpArtlcle 27 when due, or {2J tlTcrtant fails to perform or observe any agreement or condition on its part to be performed or observed, other than the defaults mentioned trt the preceding elauae (1) or in i•]aixses (3} through {e) below, or if Tenant defaults under any other lease ar agreement between Tarrant and Landlord or an affiliate eC Landlord, or (3] If Tenant's leasehold Interest 151cvted an, attached ar taken by any procrss of law, yr (4} if Tenant makes art assignment aC ifs property for the beaeQt of creditors, or (5} 11 any bankruptcy, insolvency ar reorganizaifan proceeding ar arrangement with creditors {whither through court ar by proposed mmpasitlan with creditors} !s commenced by ar agauist Tenant ar (t3} Jf a receiver or trustee is appointed for arty of Tenant's property, ar (7} if this Lease to transferred to ar dewlves an, or the Leased Premises is accupleil bp, anyone other thaa Tenaat e~tcept if~spectflcaIly permitted by this Lease, or (t3) it Tenant closes the Leased Premises or ceases doing business~at the Leased Prcmtses. (B) If (i) a default desribed to subsecrian 15(Aj{1) or to subsections I5(A)(3) through (7) Inclusive occurs, or (1Z) a default described 4z subsections 15(A}(2} or 15(A}{8) occurs and continues for more than tiftem (15l days aftrs written notlce from Landlord, then in arty of such cases Landlord ar !ts agent shall have the fight to entry the Leased Premises and dispossess Tenant and aA other occupants and their property by legal proceedings, use of reasanable farce {under the wndltions allowed 11s Article 15(F} hereolJ or otherwise. Texan! hereby waives any claim it might have for trespass or conversion or other damages if Landlord exercises such remedies. Landlord may exerdse the remedies Just merltloned without tenrdnaring this Lease. As an independent cumulative right to obtaining possession without tenntnatlng this Lease. Landlord shall have the right to ternltrlate this Lease by giving Tenant written notice speclfytng the day of terminaton (which shall be not less than live (5) days from the date of the notice}, on which date this Leone and all of Tenant's rights will cease as a candltlonal liraltatioa,. as ff tb¢t date speclfled In Landlord's notlce was the orlgmai date for Gcpiratian of this Lease: but in all cases Tenant shall remain liable a9 herelnatter provided. (C} Notwithstanding any n:-entry. dtspassessioa or termination of the Lease by Landlord, Tenant will remain Uable far damages to Landlord 1n an amount squat to the aggregate of al[ Rents and other r1•]arges required to be paid up to the tune aC such re-entry, dlspassesslon ar terminaton, and for Landlord's damages arising out of the Failure of Tenant to observe and perform Tenant's covmailts and; •tii• addition. Cdr'each~znonth~ of the period which would atherwfse -have constituted the balance of the Lease Term, t shalt any de8den between the monthly installment of Base Rent lus ax Rent Co wo eve earl p$ a ne amount of the rents acluallv collected by Landlord from a new tenant, tf any. Tenant will not he anti ed to any surp~lTus, urtherraore, Tenant will be liable to Lan o or all the expenses Landlord Incurs for iegaF fees related to obtaining possession and making a new lease with another tenant; brokerage commissions In obtainng another tenant; and expenses tncla•rcd in putting the Leased Premises in good order and preparing for re-rental (together herein referred to as "Ftclettlng Costs"}. In addition. Landlord may relet the Leased Premises, ar say part thereof, for a term which may be less oi• mare than the period which would have, constltuted the balance of the Lease Term and may grant reasonable cancessibns or free" tacit to a new tenaaf. Landlord's refusal of Failure /' to relet the Leased Premises to a new tenant shall not release ar affect Tenant's Babiltty; and Landlord shall not be liable for failure or refusal to relet, ar !ar failure to rnllect rent under such relefttng. €er y~e-pages _ d]er~-'s-d ~e~te 56-5 a e-IaCBGe ~ _ B£l. ,,-~ ~ a/_s~aa o-ao.ui C\oa\dlcal\TESI]'\Ceue{S-IOQOD1 Dawn 5hu~hart tO75~oe Ga - Fmv -O7 1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 1$ 19 20 21. 22 23 24 25 26 27 28 24 3Q 31 32 33 35 36 37 38 39 40 41 4Z 43 44 45 46 47 50 51 52 53 54 55 56 57 58 59 60 61 63 63 64 65 66 67 68 6~9 7I 72 73 14 75 76 77 7$ 79 80 (D} In nay case where Landlord shall have the right to hold Teaaat llabk monthly, Landlord may elect to declare aIl tht aggregate Rent for the remalaing balance of the Lease Term, as writ as all accrued Rent. to be Immediately due and payable, sod fn recover immediately. agatnst Tenant all such Rent (fat loss of a bargain anA not as a penalty}. (GJ Landlord and Tenant mutually agree that they hereby waive trio[ by Jury in any acrioa, proceeding ar counterclaim brought try either against the other as to arty matters arising out of or >n any way connected wi#h this Lcaee, ar their relatlaaship as Landlord and Tenant, or Tenants use or occupancy_ Tenant agrees that no eauntcrclaim or sttaQ will be interposed in any action by Landlord based an non-payment of Rent, even tf such counterclaim ar s~tnfi is based an Landlord's alleged breach DC a duty to repair or alleged brmch of quiet cnJayment, or any attscr aticgatton. 18: 6ab'oEdination. (~ This Leese !s and shall be subject and subordinate to (!) aII ground or underlying leases and oIl mortgages or other security Instruments note or hereafter efierttng such ]casts, and {11) aIl rnartgages or other security instrtunrnts saw ar hereafter affecting rice fee tltle of the Shopping Center, and (ttil all renewals, modifications, consolldatians. replacrmmts and extensions of any such ground or underlying leases and mortgages, This claust steal! be self-operative and na further instrument of subordtnatloa shall be required by Eery ground ar underlying lessee or by arty mortgagee. In canfirmatton of such subordination, Tenant agrees to execute promptly any instrument that Landlord may request However, at the optloa of Landlord or such mortgagee or ground lessor ar secured party, this Lease shall be paramount to such mortgage or ground or undvlying lease or other security instrument (8) if Landlord transfers its Interest !a the Erased Premises, ar proecedings are brought for foreclosure of any sudh mortgage or incase of sale Ln lieu thereof, ar terinfnatliin dC any such ground or underlying leasc,~ Tenant shat], If rtquestcd; attorrr to the transferee, mortgagee, ground or uader]ykrg lessor and deliver, without charge, inatrummts aclmowledgtng the attornment (C) Provided Tenant was given natlce [n writtng of the names and addresses tp which the notlccs should be seat, Tenant shall give prompt written notice of any default by Landlord to the holder of_aII mortgages, ground ar underlying leases and security holders if the default Js surf as to glue Tenant a right to (i) terminate this Lease, ar (S) reduce the Rents or arty other sums reserved, ar Litt) credit or offset any amounts against Rents. Arry mortgagee, ground Iessor or security holder shall have the right to case Landlord's default viithin slily (b0)' days alter redelpt of Tenant's notice; and no such rights ar remedies shall be exadsed by Tenant until the expiration oC sold stxty (6Q) days (or such additional time reasonably required to cure such default). I7. Waiver of SnbraEntioa. Landlord and Tenant hereby release the other and alt other persons claiming under it from any and al! liabllity for loss or damage caused by any casualty, even if the casualty Ls bmught about by the fault or negtlgmcc of the other or of any persons claiming under the other. Tenant and Landlord wilt cause their respective insurance companies to endorse their respective insurance polides to permit a waiver of submgatlon. It3. A65iGNMEHT oR 6UBLETI'ING. Tenant shall oat assign, mortgage, pledge, or otherwise transfer or encumber this Lease yr any lnttrest therein, either vatuntarfly or by operation of lave or odserwlse; or sublet the whole _ru any part Df ttie Leased°Premises, pr peniiit occupancy by anyone else, without obtaining an each occasion Landlord's prior written consent, which consent Landlord may deny, regardless of camraerrlai reasonableness. In a~ assignment the assignee must assume this Luse in writing on Landlord's farm. Any request for,Landlord's consent to assignment ar subletting shall be accompanitd by payment of Landlord's reasonable administrative and attameys' fees relating thereto_ Notwithstanding an assignment or subletting or occupancy of the ].cased Prcrnlses by anyone other than Tenant, Tenant shall oat be released {nor shall arty oC Tenant's eonstltuents, pariaers, ar members be released) from arty DbIigations, ISabtlities ar covenants under this Lease and shall continue to remain responsible. Landlord'shaA bave the right to collect Rent Cram nay asstgnce, subtenant or other occupant without releasing Tenant ar waiving any right against Tenant for its default unctcr'this Article and without accepting the payor a's a permitted tcrrarst Any transfer of (i) any corporate stock of; (U) any parbicrshtp Interest tn; or (i!!) any membership interest in Tenant, or a merger, coasolldatlan or liquidation of or by Tenant, either voluntarily or by operatlan of )aw, shall be deemed an' assignment and require Landlord's consent as stated above. Under any circumstances, Landlord shall not be liable for any monry damages to Tenant or TeaanYs proposed assignee, transferee or subtenant For refusal to consent to any assigmncnt or transfer aC this Lease or transfer of Tenant's corporate stock ar sale of Tenant's business, or far refusal to consent to any subletting; Tenant's sole'reatedy shall be speciAc performance, ti. esalg~ser+t-s>?~ ~sr~a}~-~a~r~--pr-lei-Ee-z§e-assign-axy al's/aa o-au eu n•i¢ C\sm\dlo,t\SEhIP\4me p.4909D~ D¢wn 36u~h¢rf. IU76.dx Ca Foam 44T (s''} Tenant wanes service of notice of intmtlan to reenter or instltute legal proceedia'gs to that md. Tenant waives any rights oC redemptlon es to the Leased Premises granted by arty present or future Laws. The wards "ro-criter" and "re-entry," are not Testricted to there tcchaical legal meaning. Notwithstanding the foregoing, Landlord may use force to dispossess Tenant only 1n the following sttuations: (>J tt is pursuant to law or a court order, ~udgmerrt or decree: or (11) Teaaat has not been operating its bustnrsa at the Leased Premises open to the public as required by Article 9(C) oC this Lease for more than seven (7) business days. i PeFeeef:age-Aet}6-dtark'eP-the-elsg .~ 3 ~~ 4 _ 6 - - - e~e#~ even-~a#-~eYef-days 7 ' 8 19, sn;{mdes amI l3oldin8 ova:. 9 10 (r?~ At the ea~riratlan or eooaer tenxdnation of the tenancy hereby created, Tenant lI shall surrurdcr the Leased Fremisrs in the same coneittlon as the Leased Premises was in upon 12 delivery of possessiaa thereof to Tenant, reasonable wear and tsar excepted, and damage bl' 13 unavoidable casualty excepted to the extent that the same is covered by Landlord's Property I4 lasurance policy. and Tenant shall surrender all keys for the Leased Premises to Landlord acid shall 15 inform ]andlord of all comblaatloas on lacks, safes and vaults, if ate, !n the Leased Premises. Prior 16 to the expiration or sooner tetminatlon of this Lease, Tenant shaII remove any and aII trade fixtures, 17 equipment and other unattached hams which Tenant may have installed, stored err felt to the Lensed IS Premises err elsewhere is the Shopping Center, and Tenant shall not remove anY plumbing or 14 electrical fixtures or equipment, heating or air canditioaing equipment, floor coverings (including but 20 not lhaited to wall-to-wall carpeting}, walls or callings, all of which sbaII be deemed to consitute a Zl part of the freehold wad/or leasehold taterest of Landlord, nor shall Temaat remove any @xtures or 22 madurrery that Sucre Furnished err paid for by Landlord (whether taitially inataUed or replaced). The 23 Leased Premises shall be left In a broom dean eonditlan. If Tenant shaIl fa[1 to remove its trade 24 fixtures or other properly as provided In this Artide I9, such Axtures and other property not removed 25 by Tenant shall be deemed abandoned by Tenant and at the option oC Landlord shaIl become the 2G property of landlord, or at landlord's option may be removed by Landlord at Tenant's expense, or 27 placed ha storage at Tenant's expense, err sold err othestvise disposed of, in which event the proceeds of 28 such sale or other disposttlon shall belong to landlord. In the event Tenant does not make arty repairs 29 as required by this Amide 19(AJ, Tenant shall be liable for and agrees to pay landlord's costs and 30 cxpeases in making such repairs. Tenant's obligations and covenants under this Article 19(t~ shall 31 survlve.the expiratlon or trrminattan of this~Lease. 32 33 {B) ff Tenant m anyone claiming under Tenant n.,,wrn= in possession of the Leased 34 Premises after the e7cplratloa of the Lease Tenn, that persaa shall be a tenant at sufferance; and 35 during such holding aver, Hose Rent shaD be twice the rate which was in effect lrnmedle#dy prior to 36 the Lcasc Term expiration, which Landlord may col)cct without admission that Tenant's estate is more 37 than a tenancy at suffaancc, and all the other. provlslans of this Lease shall apply insofar as the same 38 are applicable to a tenancy at sufrerance, 39 40 20. No. Waivers by Landlord. No waiver by Landkrd of any breach by Tenant or 41 n:quirernent of obtaining Landlord's consent ahaIl be deemed a waiver of arty other provision of this 42 Lease err any subsequent breach of the same provision or a waives of anp necessity far further 43 consent. No paynumt by Tenant or acceptance by Landlord of a lesser amount than due from Tenant 44 shall he deemed to.be anything but payment'on'account, and Tesiarit's paymeht`of a lesser amount 45 with a stakcmcnt that the lesser amount is payiaent in full shall not be deemed an accord and 46 satJSfactloa. Landlord may accept the payment without preJudice to recover the balance due or 47 pursue any other remedy. Landlord may accept payments even after default by Tenant without 48 prcJudlce to subsequent err concurrent rights err remedies available to Landlord under this !.ease, at 49 law or to equity. Arty acceptance by Landlord of nay pagmrnt by Tenant after tenrdnatlon or 50 rxpiratlon of the Lease Term shall not constitute an acceptance of Rent but rather a payment to 51 Landlord on account of Tenant's use and ot:cupancy of the Leased Premises. All rights end remedies 52 which Landlord may have under this Lease, at law or to equity shall be distinct, separate and 53 cumulative and shall not be deemed lnrnnsistent with each other, and any or aIl aCsnch rights and 54 remedies maybe exercised at tht same time. 55 56 21. ~nles wad ltegrilatioris. Taunt shall abstnre and comply with, and cause Its 57 employees, agents, subtenants wad eoncesssonaires, and their employees and agrnts, to observe and 58 comply with aII reasonable rules and regulations promulgated by Landlord by notice to Tenant; and 59 such rules and regulators 'shall Piave the same farce and effect as !f origtrially contained to thLg Lease. 60 61 22. Fal'lnre of Performance by Tenant. If Tenant shall default under this Lease, Landlord 62 may, at its election, tmmediately~or at any`tiiiio thereafter; without waiving any claim for breach of 63 agreement, and without notice to Tenant, cure such default or defaults far the acr~unt of Tenant, and 64 the cast to Landlord thereof plus interest at the Default Interest Rate shall be deemed to be additlana] 65 Rent and payable on demand: Ttnartt shall pay all reasonable attnmcys' fees, rnsts ~and~ ocpenscs 66 incurred by Landlord in enforcing the provtstona of this Lease, suing to collect Rent or to recover 67 possession of the Leased Premises, whethv the lawsuit err other action was commenced by Landlord 68 or by Tenant. 69 70 23. L3mitst3ons oa E.andtord's Liability. 71 72 (A,) 'Tenant" includes the persons named expressly as Tenant and Its transfaces, 73 successors and assigns. FSczept as otherwise provtdcd in the next sentence, the agreements and 74 .conditions contained to this Lease shall be btading an and inure to the benefit of the partles hereto 75 and their transferees, Legal representatlves; successors and assigns: "landlord" means only the then- 76 owner of the lessor's Interest to this Lease, and In the event of a transfer by Landlord of its interest In 77 this Lease, the transferor shall be automatically released from sll liability and obligations as Landlord 78 subsequent to the transfer. 79 ~-s 4I^~leh 9,;9 Me C\xa\dlrne~TEA1T\ien,c 11~49gOD}ae,m Sbur6vt ler7e.d„e Ce7 Farm 697 i8) Notwithstanding anything to the contrary, Tenant agrees li will look solely to Landlord's estate 1n the Shopping Center as the sole asset Car collecttan at any claim, Judgment or damages ar entotzernmt of any other judicial process nxlulrirtg payment of money. Tmant agrees tha# no other assets of Landlord shall tre subject to Ievy, execution or other procedures to satisfy Tenant's rights ar remedies. 24. Misceltaneons Prov3sloas. {A} This Lease contains the satire agreement between the parlles. No oral statements or reprssentatlons or written titatter' not contained in this Lease sliali have any force or effect This Lease carmat be mad!lied ar terminated araIly, hui only by a writing signed by Landlord and Tenant, except for a tesrnination expressly permitted by this Leases If mlrrc than one party executes thin Lrwae, as 'Tenant ,the liability of all such aignatorfes shall be joint and several. Neither this Lease nor anY memorandum, asslgntnent or memorandum of asslgruaent thereof shall be recorded in arty public records without landlord's prior wrilYen consent. Any abllgstlon of any person shall be performed at Its sales cost sad expense unless a contrary iattnt !s expressly stated heretn_ Garb provision of ttifs Lease shall be valid and enforced to the fullest extent permitted by law. Hmvcver, iF nay provision ar the appticatloit ~thert:of to nay person or circamstanEc shall to any extent be declared by a court in be invalid, the remainder of this Lease shaII not be affected. 1f Tenant is not an Individual, the person signing this document on behalf of Tenant represents (by such signature) that he or she has been duty authorized by Tenant to execute this dacuatent and that such signature creates a 6tnding obligation of Tenant [g} The terra "Default Interest Rate" as used !n this Leese shall mean ~ (154L) Percent per annum ar the aiardmurn interest rate permitted by law, tvhiehever fs lower. ~ a IG) Notwlth~tanding any other provision in this Lease, Landlord in Its absolute discretion shaII have the option at arry time to retacatc Tenant From the Leased Premises Ithe "Present Premises' into other prennises hr the Shopping Center {the 'New PremLses"}. Landlord shall give Tenant at least Carty-rive (46} days notice of the appraximatL date Tenant is to move to the New Premises. Landlord shall prepare rise Nety Preralses to tare same extent Uaat Landlord prepared the Present Premises. The New Premises will leave at least the same amount of square foot area as the Present Premises. Landlord ahaA pay far moving Tenant's inventory, fixtures, equipment end storefront sign to the Nesv Premises. Tenant shall cooperate with Landlord. Tenant will move its business aperadons to the New Premises within forty-eight (48) hours after Landlord natiflts Tenant that it has substtratially completed its preparation of the New Premises. The New Premises will became the Leased Premises {instead of the Presmt Premises) and the Rmt {including all of Tenant's other monetary obligations m Landlord under the Lease) and aII the other terms and grovlsions of this Lease shaII be transferred to and continue to apply. without interruption, to the New Premises tram and after the date Tenant is required to move pursuant to this Article. (E) The provisions of this Lease shall be construed, ire aII respects, without reference to any rule or canon requiring ar permittlag the canstructlon of provisions of documents against the interest of the party respoasihle for the drattirsg of the same, it being the tntentian and agreement of the parties that this Lease be conclusively deemed to be the Joint product of both parties and their counsel. Furthermore, the parties agree that this Lease maybe executrd with rtvislon markings (sa- called "blarldirsing7 appearing ire the execution copy (Le., deleted tent is overatrirlien sad newly. Inserted text is underscored or in~ boldface); such "blaeklining' shall not be accorded nay significance or taken faro account En 2ny way; Wts Lease shall be construed far all purposes as 1f all overstri4dctn text were deleted and never Included in this Lease and all bold or underscored text were nok bold or underscored. (j') gniet Eniovmcat Landlord covenants that, upon Tenant's payment of the Rent required hereunder and its performance of all oC the terms and conditions aC the Lease, Tenants peaceful and quiet eajoyriient of the I;eased Pruatses shall not be disturbed by Landlord or anyone properly claiming by, through or under Landlord. Notwithstanding the foregoing, this provision is sub)ect to ail mortgages, encunrbrFUrces, easements and underlying leases to which this Lease may be or become subordinate. n-ia 4!74/04 8:49 AM C:\"m\dlent\1flI1P\itax II-i90aal Dawn 9mrhest 107EAx C8 ~~ 447 (D) The submission of this Lease to Tmant for review or Tenant's signature dots not constitute a reservation of, or option for, the Leased Premises or a representation that the business terms have been approved by executive oliicers of t.aridlord or Landlord's Hoard of Directors. This Lease shall became eiFectlve as a tease ar agreement only upon mutual. cxecutinn and delivery. A lease which is not fully exstutcd arid'd"elivered' carmot be enfon:ed in any mariner and ~aiitiot give rLse to any rights ar remedies. 1 3 4 5 6 7 8 9 10 it 12 13 15 16 17 19 ZD 21 22 23 74 25 26 27 2$ 39 30 31 32 33 34 36 37 38 39 40 4I 42 43 44 45 46 48 49 5D 51 52 53 54 55 56 57 5s 26. IInavoidable Ae7avs. Where either party hereto is required to dv any act but >s untimely la complettag the act, the time attributable dlreetly to delays caused by an Act oC God, hurrir~e, tornado, rain, snow, cold or other wtather, war, atoll conunotlon, Are or other casualty, labor diiHculttes, or shortages of labor. materials or equipment, government regulations or other causes beyond such party's reasonable control shall not be counted in determining the bare during which such net is to be completed. Irr any case cohere work is to be paid for out oC srsuranec praceed5 or condcaraatloa awards, due eDourarrce shall be made for delays in the collection of such proceeds and awards. The provislods of this Article sbaA not be applicable at aII to excuse or permit delay oC the time far Tenant to pay Rent or other money err to obtain and maintain insurance poAdes. If Landlord 1s unable to deliver the Leased Premises by the end of one (l) year alter Landlord's execution of this Lease, then either Party may terminate this Lease by giving thirty (94) days written notice to the other at any time prior to tender. 26. Sole Bmleer. Tenant represents that no broker, finder, or other person entitled to compensation (other than the Broker identlAed in Artlclc 11 was involved in rifts Lease, end that no conversations or prior negotlatlons were had wtth any broker, Rader or other possible claimant other than the Hrokc caneeenirrg the renting of the Leased Premises. Tenant shall defend, indemrsify and hold Landlord harmless' against 'any claims for compensation (including legal tees lncr.wred by Landlordl arising out of any conversations err negotlattons had by Tenant wfth anyone other than the Broker. 27. Estonvel Ceitiflcates. From time to time, within tern (10) days !allowing written notice, Tenant•shall deliver tv Landlord a stgned and arlmowledged wrtttm statement certifying: the date of this Lease and that this Lease >s is fuII farce and eII'ect and unmodified except as staked; the monthly Hose Rent payable during the Lease Term; ^~'' +t^ n~-_,_.- e__+ n.a^. the date t4 which the Rent and other payments have been paid; whether Landlord !9 in default, or if there are arry offsets, defenses, or counterclaims claimed by Tenant, and iC a default, offset, defense, or counterclaim is claimed, specifying the spedAc nature and default: and stating arty additional matters requested by Landlord or a mortgagee. 28. Shoanin2 Coates ChanBCS. Neither FhCh1 it A nor this Lease 1s a wananty by Landlord that the Shopping Curter wiA remain as shown. Landlord may relocate, fncrease, reduce or otherwise change the number. dimensions, or locatlons of the pazktng areas, drives, exilic, entrances, walks sad other Common Areas err buildings. If Landlord desires to modernize the facade of the Shopping Center, Tenant shaIl, upon request of Landlord, instaA a new exterior sign and trnprove its starefivrit, following the design of Landlord's architect. Landlord reserves the right to use portions of the Common Area for canstructlon-related arlivitles and to erect temporary scaffolding in front o! the Leased Piearlses. Tenant wolves any claim for rcpt abatement, lass oC business or damages arising out of any reasonable and tearparary inconvenience aIIegediy experienced by Tenant during the enures of any alteration, improvement or modemizatlan, or during arty repair activities in which Landlord is engaged. 29. Notices. AII notlces intended to impose liabAlty on the oilier party or exerdse a right ('7Vbttce'7 shall be !n ~4ilting and sent by`certliled~or registered mall, retuns'recelpt requested, or deLvcred try a nationally recognized overnight courier (such as Federal Express or LlPSj and 1n order to be effective a copy of any notice of Landlord's default must be sent by Tenant to the hoidens of any mortgages, groilrid leads ~ or secuilty lirterests a3 per "Article l5(CI. Notices shall be sent to the address set forth !n Article 1 or to such other address as racy be designated by notice. Notices shall be ettectlve the day after the notice was sent, or if try courier delivery, the day delivered. The gurported giving of notice or exerdse by Tenant of any right, option err privilege by any means other than written notice given in'strict coarpltanrx with this Article shall be nuA, void and of no force or effect, even iC any such other means of co~nunicaCrm~ succeeds ur wnveying actual notice. If courier delivery is refused or not able to be made, the day delivery was Arst attempted shall be deemed the delivery date. (END OF RIDERlI) SEE RIDER B ATTACHED HERET'd APID HEREBY MARE A PART O.F TffiS LEASE. n-ia a~aiw o:au nrr c~o~umnzsau~ea~n-+uooan.wo+suu~~o<+.~a'rsao~ ca Porn 477 R(DEA "B" 30, Notwithstanding anything provided herein, if there is any discrepancy between Rider "A" and Rider "B', Rider "B° shall prevail. 31. Ston Criteria -.Reference to Article iOfD). (A) Tenant shall be required to design and install at ifs sale cost and expense an illuminated Individual channel letter sign an the exterior face of the Tenant's storefront. Tenant must obtain Landlord's written approval of Its sign design drawings prior to the febrlcatian and installation of Tenant's sign. The drawings must Include the dimensions, color, style and types of materials to be used. The sign shell be placed in the designated area in such a manner that it does not extend above the parapet or facade and does not exceed 2/3 of Tenant's storefront. The plans and permits fior, and the lnstaliatlon of, Tenant's sign shal) ail be at Tenant's sole cost and expense. The sign shall. be govsmed by all applicable provisions of this Lease, Including, but not limited to, Tenant's duty to repair (Article 10) and insure (Article i i }the sign. Tha sign shall be subject to all govemrnental authorities' codes and resMctions. (B) Upon the expiration or sooner terminatlon of this Lease, Tenant shall remove its sign and restore the sign band/fascia to its original condition. 32. Utility Dereculation. (A) Landlord Controls Selection. Landlord and Tenant acknowledge that now utility deregulation may allow Landlord to change electric service providers in the future. If such deregulation goes into effect, Landlord shall have the right at-any time and from time to time during the tease Term to either (1) contract for serv(ce from a different company or companies providing electricity service (each such company shall hereinafter be referred to as an °Alternate Service Provider") or Qf) corttlnue to contract for service from the present electric utlity company (the "Electric Service Pravlder"). In the event that the entire Shopping Center is required to be serviced by the Alfemata Service Provider, Tenant agrees to contract for senrice from the Alternate Service Provider. (B} Tenant Shall Give Landlord Access. Tenant shall cooperate with Landlord, the Electric Service Provider, and any Alternate Service Provider, at all times as reasonably necessary, and aNow the foregoing to have reasonable access to any and ail electric Imes, feeders, risers, wiring, and any other machinery within the Leased Premises. (C) Landlord Not Resaonslble far interruotlon of Service. Landlord shall not be. liable or responsible for any loss, damage, or expense thetTenant may sustain or Incur by reason of any change, failure, interference, disruption, or defect in the supply or character of the electric energy furnished to the L' eased Premises,' or if the quantity or character of the electric energy supplied by the Electric Service Provider or any Alternate Service Provider !s no longer available or suitable for Tenant's requirements, and no such change;. failure; defect; unavailability, or unsuitability shall constitute an actual or construcifve eviction, In whole or in.part, or entitle Tenant to any abatement, or dl'minution 'af ,rent,. or relieve Tenant from ahy..of Its obligations under ilia Lease. ~~ 33. HVAC. Notwithstanding anything cohtalned In Articles 7 and 10, if: i) the HVAC system fails to operate during the ten (i0} days following the date Landlord tenders the Leased Premises to Tenant; ii) the failure is not due to an act or omission of Tenant or its agents, employees or contractors; and iii} Landlord receives ~virltten notice from Tenant wiihin three days of the failure, Landlord shall restore the system to operating condition. After the ten (10) day'perlcd, Tenant shall have full ~responsibllity with respect to the MVAC system. 34. PLANS AND SPECIFICATIONS, (A} In the event Tenant desires to perform any work, or make any alterailons or modifications in end to the Leased Premises (other than lnstallatlon of shelves, painting and carpeting, and other similar interior noel=stniori.tral minor cosmetic changes}, or !n the event Tenant desires to~ perfomt any work in the Leased Premises which requires the submittal of plans to the municfpailty and/or requires municipal permits.end approvals, Tenant shall submit to Landlord, for Land)oi•d's written approval the following items (hereinafter collectively referred to as "Required Items'7: ie 4/26/2404 Ca C:1sealcllantlTEMPILease (7-4Ht]00) Oawri Shuphart t075.doc RIDER "B" 1. Complete detalied drawings and specifications in sufficient detail for Tenant to obtain ail necessary building permits (hereinafter callectiveiy re#erred to as °Plane"} for all the work to be done by Tenant to the Leased Premises. Each of Tenant's Pions submissions shall Include two sets of full-size constructlori drawings and specifications, as well as one set of camputedzed carstruction drawings saved on 3.5" diskettes in .DWG or .DXF Ella format 2. A contractor's °Payment and Performance Bond° in favor of Landlord as o151lgae, in form approved by Landlord, Issued by a surety company satisfactory to Landlord, guaranteeing completion of Tenant's work fn accordance with the Plans free of liens and security agreements. 3. A comprehensive general liability insurance policy from Tenant's contractor's insurer (with a rating of not less than A-8) naming Landlord as additional insured far at least $3,000,000 combined single Iimit for bodily injury end property damage and contractors Workers' Compensation and Qccupational Disease insurance wl#h statutory limits and employer's liability with a limit of at least $1,000,000. • 4, The general contractor's written Indemnity agreement In the form attached hereto as F_xillbit• °t3-i"• that the contractor shall indemnify, defend, save and hold harmless Landiord, its mortgagee, agents, employees and assigns, from ail Ilabgltles, claims, losses, liens, damages and suits of whatsoever nature far personal injury, death or property damage alleged to arise out of the work performed under the contract, whether by contractor or 6y any subcontractor, and whether asserted against Landlord or contractor. (B) Landlord shat! inform Tenant of any objections to the Required items within thirty {30) days after receipt of all such items: if Tenant falls to daiiver any of the Required Items timely, then Landlord shad have the right to terminate this Lease and retain the Tenant's entire security deposit as liquida#ed damages. Furthermore, Landlord shall have no obligation to revtew Tenant's Plans unless and until Landlord is in receipt of all Required Items. Tenant, within fifteen (15j days of receiving Landlord's abJectlons to the Required !tams, shall deliver to Landlord corrected .Required Items, which Landlord steal! accept or reject within, the next fifteen (15) days. ' ., (C) Tenant must ob#ain Landlord's written approval of aii Required Items.prior to commencing any of (ts work at the Leased Promises. Landlord's approval of Tenant's Plans shalt not constitute an affirmation by Landiord that they conform to law or impose any liability. on L-andlord. Upon .Landlord's approval of the Required Items Tenant shall -Immediately apply for all permits necessary for its work. After the permits era issued arid Landiord has completed the work, if any, tha# it has specifically agieed In this Lease to •do, Tenant shall'prorilptly commence and complete Tenant's worts in cohfarmity with the Plans, building department requirements and a!I relevant laws and regulations. (D) Tenant~shalE comply with all iegal requirements during its wbrk~ahd, when completed, Tenant's work must comply with aii laws, ordinances, regulations or orders of public authority, and with the requirements of the appropriate Fre Insurance Rating Qrganiaatlon and Landlord's Insurance company. Prior to opening for business; Tenant shall obtain and deliver to Landiord: (a) Tenant's'affldavit that ail work, tabor and materials have been paid for, (b) final lien waivers, as weal as paid Snvoices or statements, from all contractors and subcantraators who performed work at the Leased Premises and all ma#erlalmen and suppliers who provided materials andlor egtilprhent~used ln'connect(on with Tenant's work at the Leased Premises, and (c) a copy of the certiFicate of occupancy (or its local equivalent) for the Leased Premises. If a temporary Certtficate,,of Ogcupancy,ls.fssued, Tenant shall.deliver..a.copy of that document to Landlord and then, ~ upon Issuance of a permanent Certificate of Occupancy, Immedtatefy forward a copy of 1t to Landlord. (E} if l~ndlvrd or its representative inspects the 1_eased Premises and determines that Tenants work is rrot being done in accordance with the approved Plans, Tenant shalt correct any deficie'ncie's or omissions lrtrmedlately. (F) Tenant shall not permit any mechanic's or other lien to be filed either against the Leased Premises or the Shopping Center or Tenant's leasehold Interest by reason of work, 4/29Y204a C8 C:tiseaidlent~TEM?4t.ease {7-48aDDj Dawn Shughcrt 1075,dac RIDER "B'• labor, services or materials supplied, if any Ilan is fi[ed, Tenant shall, within ten (10) days after notice of the filing;~cause ltto be discharged of record, falling which Landlord, in addition to any other right ar remedy, may {but shall not be obligated to) discharge such lien by deposR, bonding proceedings or by payment bf the claimed amount for Tenant's accourrt. Any amounts so paid, together with Interest at the Default Interest Aate from the date of payment, shall ba paid 6y Tenant to Landlord on demand as additional Rant Nothing herein shall be construed as the consent or request of Landlord to any contractor, subcontractor, laborer or materialman to perform work or furnish materials. Furthermore; nothing herein shaft give Tenant the authority to contract for or permit the rendering of any service or furnishing of any material that could give rise to the flling of any lien. (G) Tenant shall require its contractor to furnish to both Tenant and Landlord nn completion of the work a guaranty, for a period of one (1) year from fine! completion of ail work, that all work and materals will be free from all detects and that all apparatus (a.g., air=condi8oning equipment) wilt develop capacities and characteristics specified in the approved Plans upon use, and chat whenever within one (1} year of the final acceptance of the work, contractor Js notliled In writing by either Landlord or_Tenant that any equipment, material or workmanship fs defective or In some way does not mee# specifications, contractor shall Immediately replace, repair or otherwise correct the defect or deficienoy without cost to Landlord. Additionally, the following ftems shalt be guaran#eed for periods !n excess of the ono (1} year: Motor Compressor Units -flue (5} years; Exterior Welts -two (2} years (guaranteed against air and moisture Jeakage}; Roofing -two (2j years. {H) 1ri the event Tenant's work involves the construction of a demising wall, Tenant shall physically indicate the proposed location of the demising waft on the floor of the Leased Premises, notify Landle~d's architect that the' location has been marked and that construction of Ehe wolf is about to begin, and give Landlord's architect a reasanabie opportunity to come to the Leased Premises and inspect the proposed placement of the wall. (1) For any Tenant work that lnvoives penetration of the roof surface, Tenant shall employ Landlord's roofing contractor, thereby ensuring that the roofing bond andlor warranty will remain In full force and effect. The maintenance of Tenant's roof work will be the sole responsii3111iy of Tenant and shall: inglude #he, repair of adjoining areas that might have been affected due to Water penetration through Tenart's roof work. • (J}. In the ever>f Tarrant must,ebtain a zoning variance, walver.or other change in order to use the Leased Premises for the purposes described in Article 1(N7), or for any work Tenant desires to perform at the Leased Premises, Tenant shall first obtain Landlord's written approval, not be unnaasonabiy withheld or delayed, prior to seeking such a change. !f Landlord's consent is given, Landlord agrees to cooperate with Tenant In such application and Tenant agrees to: (1} keep Landlord advised of all developments as they nccur,'(It} provide Landlord with an opportunity to review all documents befoie they are filed, and (ill) give landlord a reasanabie amount of notice befere.any hearings are bald so that LandJord's.representatlve shall have an opportunity to,attend.'f'enant shall not,be permitted to enter into any agraemen#s that affect the use, access, or condition of the Shopping Center without first obtaining Landlord's written consent, and any attempt to do so shall consti#ufe a default under the Lease. 35. (A) POWER TO: CONFESS JUDGMENT: TENANT HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF REGORD WITHIN THE t;,OMMONWEALTH 01= PENNSYLVANIA OR EL5EWHERE TO APPEAR FOR TENANT, AND, WITH OR WITHOUT DECLARATION FILED, CONFESS JUDGMENT AGPiINSTTENANT AND IN FAVOR bF LAf~DLORD, AS OF ANY TERM, FOR THE UNPAID OBLIGATIONS HEREUNDER, INCLUDING WITHOUT LIMITATION ALL ACCRUED AND UNPAID tN'rHA1=ST CHARGES, RENTS OR Ol`H)_R CHARGES PAYABLE HEREUNDER, WHETHER BY ACC>=LERATEON OR OTHERWISE, WITH COSTS 4F SUIT AND A REASONABLE ATTORNEY'S COMMISSION OF FIFTEEN (15%) PERCENT, WITH RELEASE OF ALL ERRORS, WAIVING ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION, TO THE EXTENT THAT SUCH LAWS MAY LAWFULLY BE WAIVED. NO SINGLE EXERCISE OF 7HE FOREGOING POWEA TO CONFESS JUDGMENT SHALL BE DEEMED 70 EXHAUST 7HE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE VALiD, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINiSHED.AND IT MAY 8E EXERCISED FROM 4/ZBPL004 Ca Ctsea4cllentlTcMPllaasa (1.4HQC6} Dawn Shughart 1t175.dac L _ . f . R1DER °H" TIME TO TIME AND AS OFTEN AS LANDLORD SHALL ELECT, UNTIL SUCH TEME AS ALL OBL•IGATiONS HEREUNDER SHALL HAVE BEEN SATISFIED. WHEN THIS LEASE SHALL HAVE EXPIRED DR BE TERMINATED BY REASON OF THE BREACH OF ANY PROVISION HEREOF, IT SHALL BE LAWFUL FOR ANY PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR TENANT TO F1LE AN AGREEMENT FOR ENTERING IN' ANY COURT OF COMPETENT JURISDICTION AN AMICABLE ACTION FOR CONFESSION OF JUDGMENT iN EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE LEASED PREMISES, FOR WHICH THIS LEASE OR A TRUE AND CORRECT COPY THEREOF SHALL BE A SUFFICIENT WARRANT, WHEREUPON, IF LANDLORD SO DE5IRES, A WRIT OF POSSESSION MAY 15SUE FORTHWITH, WITHOUT ANY PRIOR WRIT OA PROCEEDINGS WHATS0EVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME 5HAl.L BE TERMINATED AND POSSESSION REMAIN IN OR BE RESTORED TO TENANT, LANDLORD- SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OFI UPON THE TERMINATEON OR EXPIRATION OF THIS LEASE AS HEAEINBEFORE SET FORTH, TO BRING ONE OR MORE AMICABLE ACTION OR ACT70NS AS HEREINBEFORE SET FOFITH TO RECOVER POSSESSION BY CONFESSION OF JUDGMENT AS AFORESAID. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST THAT POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD.BY ANY COURT TO BE VALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AND AS OFTEN AS LANDLORD SHALL ELECT. HY SIGNING TH1S 1NSTRUMEN7,.TI=NANT HEREBY ACKNOWLEDGES THAT TENANT HAS READ THIS LEASE (INCLUDING WITHOUT LIMITATION THE CONFESSIONS SET FORTH HEREIN), HAS HAD THE OPPORTUNITY TO HAVE THE SAME REVIEWED BY LEGAL COUNSEL, UNDERSTANDS THE SAME, AND AGREES TO THE PROVISIONS CONTAINER HEREIN, INCLUDING WITHOUT LIMITATION THE CONFESSION OF JUDGMENT PROVISIONS AND UNDERSTANDS THAT A CONFESSION OF JUDGMENT CONSTITUTES A WAIVER OF RfGHTS TENANT OTHERWISE WOULD HAVE TO PRIOR NOTICE AND A HEARING BEFORE A JUDGMENT 1S ENTERED AGAINST TENANT .AND .WHICH ,MAY RESULT IN A COURT JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE dR HEARING AND THAT THE OBLIGATIONS MAY BE COLLECTED FROM TENANT REGARDLESS dF ANY CLAIM TENANT MAY HAVE AGAINST LANDLbRD,OR.OTHERWISE.. .. .. ' Iniilel Here Tenant (B} POWER TO EXECUTE ON A JUDGMENT WfTHOUT HEARING: TENANT HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OA ANY ATTORNEY OF ANY COURT OF RECORD OR THE SHERIFF (OR THE LAWFUL DESIGNEE OF THE SHERIFF) WITHIN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO TAKE ALL ACTION ALLOWED BY OR PROVIDED FOR IN THE PENNSYLVANIA RULES OF CIVIL PROCEDURE OR OTHER APPLICABLE RULES OF CIVIL PROCEDURE_TO EXECUTE ON •ANY JUDGMENT ENTERED AGAINST TENANT PURSUANT TO ONE OR BOTH CONFESSIONS OF JUDGMENT SET FORTH ABOVE WITHOUT PR10R NOTICE OR HEARING OF ANY NATURE WHATSOEVER, WAIVING ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION TO THE EXTENT THAT SilCH LAWS MAY LAWFULLY BE WAIVED., IdO. SINGLE EXERCISE OF THE FO RI=GOING POWER TO EXECUTE ON JUDGMENTS WITHOUT A HEARING SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE VALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS LANDLORD MAY ELECT. Initial Here Tenant 4/26!2004 CS C;isea~Uant1TEMP1Lsasa (t-49Q00} Oawn ShugFutrt 1075.doc RIDER "B" 36. Waiver of 5tatutory Notice to Ault. In addraoh to sil other waivers provided in this Lease, Tenant hereby waives any and all 6eneflts provided to tenants, to the fullest extent provided by law, conferred on tenants pursuant to the Pennsylvania Landlord and Tenant Act of 1951 (88 P.S. §25.501) as the same may be amended or supplemented from time to time including, without Ilmltation, the statutory right to receive notices to quit in the case of default by Tenant under this Lease. See Article 15 of the Lease. END OF RIDER B w vza+zoo.~ ca c:~a~crtann~MaLLa~a !1-aaaooi Dawn snueno,t ia~s.da t u~+t- t o-cuuv riuri tTJ ~ t t' "tl K • v i a ~r~+~a t''Ul{1' . .. „op u, u'7 U~770C .._. ' ~ .., '- Rx Qate~~iae ~fAi u?-ZQQ4(tRii 1i:41 tIQY-UI-2604 fRl A3td0 Pt1 K[NCa BEAI.TY CARP f !~ - 822 p,2 3 F. U03 FA>{ ~{~, 3 P, 03 taCH18tT'+1+' A-tthonzatinn Agret~menl tot Dtrtaef bebit CIlASli hUTIIOiti?.rtt'IaN A{}TtfiGMH1y7'r'OR DlftF.CT' QI:I3]T CRMYANY NAAIx ~. CthttPANYiD 11M71EP. l~Iwr~t Sh rl~r~a~ }~~rc 1-f ~~ t-LC. ~~ - J ~sS~ t~ 2. , } (Wa) autlwAr~s a4a~a named cutnpany to initiate debit enlricr to eay (oar) account with [hn danuatuny rMntcd En:tatV, )i Ittz ctlmpatty t~runentatly l+ital fundr konr my (Dory account S (twr) ausiwtixa Ih6 ataipn+ty in h+lti;ttn the ntccsn+ry etectit s+~trltit not to czeeed the IOlat of Iha original anwnnr debitod far the catty fit q+srxttoa glsPpfl fO1rYN+lMritISP1 NCiA). D(\t97: 6AViNa5a.1.9AP7 Cf7'Y S'1'A7'G 7,1P INS't'tltrT7GN7 h1'rT ~n~, „~ al~isiel Pa I7ai3 TttANS17'rA AHUMUP;R C7tIICNiN S~tVINtZ3 ACX;OUNTN MtttaR U 3 t 3 0 al 9.5~ hCCOt1N'r hCCOt)NT q g~&7 a a a r~ 9 7hlt nutharnnttoe Will ro[a+tTn In affect ttnn'1 iha uamplay has trsecivad wancn twlii'irntian Goat m+s (or etei+rr of usl tt the atklraia lialcd h:luw/above ihA! Lt la bo t+'trnlnatad (n such tltno and tnnnnct for ihfr wmt+.u[y !o nrt nn t[. [~. [;~,t •' `' ''} ~dr tutor di us) have the right 1o slop paymept at a debit Or[try by r[t>~aaltoR -o my Q~asilory 3 Uuslness days belaro my account fs charged, Attar aeCCttnt has been Charged,l have Iho right io have the amnutlt of an erroneous dealt tmmedtal~IY aradlted w my account by doponiiory, provldad 1 {wok send Wrplen nalice vt r~uch rla6ft entry kt error 1o dapositery w;<h(n Biteen days Iol owkiB e:sunnca of the account Siaromont ar str days after posting ~Yt,)chsvef occurs (inst. xnMr•{s} ~~ ~ ~ ~ j'1 tJ[~~-JR~-I' ~~t~l-f-Y~~~/bpi/1~~tCv~1 ~~lSs'a~, l~~ ~'~, '~tNJRILSJ Crl'Y ;1'IRTd' ltP Cpt7t• ~$~ r~ a, c-~vT~~' T o ~'r~) rr- ~ ~ Tlil.>:P1{ONL' '7! -7 -- ?5'8v -- ~(3 ~ .Su[,~ e, ~ 07 s- C~rllsLo Pal7ar3 S-tl liltt' ~ ATP, Y ~~~~~ ! STA.PI.L Vt71UL'•D Ot•7 tCts t7Tt I?irt'OSlT 5[.IP (C13Enri' [lIVIOI3j ><IiiRA. _ c.. - ~ _ m .; ~.. ~... - .. - ~ ca-estate .. ~ ~ -• .9'3' ~ll 2]at e ~~ ~; F' 9B 367 20'269A'GTD9'3 ~~s +. • `'~ [: .+ ~~, I i )=XHIBIT A J This site plan is intended to be an approximate depiction of the Shopping Center. Na re resentatton or warranttyy fs made with res ect to the acwal location, number or configoration otpBulldings, Curb Cuts, Rbutting Thoroughfares, Parking Areas, Traffic Patterns, or of tTi2 Tenants Intended to be within the Shopptnq Center. The landlord specifically reserves the right to change the content and configuration of the Shopping Center from ume to time and at any time the Candlord desJres in Its sole and absolute discretion, or as is requEred to conform to Local Governing Agencies. The teased premises shall be the area identified below. I 1 ! ~~7i ~ ~ N ~ ~ ~ i ff Qi 'Cra ! Ii it .~ J ! ~_ ,.~ rr a f .... 31 0 a Stor~ehedge Drive West w 0 ~. ~m 0 PD: 31704 ~c~o ~tA~ I site ~, 0~5 EX H 1 B 1 T~ EXF[IBIT "J3-1" iN13EM1VITY AGREEMEM This INDEMNITY AGREEMENT pertains to work to be performed at the Stortehedge Square, . and located in Carlisle, Pennsyivanla, herein referred to as "Shopping Center" (Klmca SJte 1075}. By (herein re#erred to as "Contracta~'}, havlrig an address at: and is part of the Contract with {herein starred to as 'Tenant"), having an address at which Contract Is dated .for work to be done at the Shopping Center from approximately through Contractor acknowledges that Tenant is contractually obligated to obtain this Agreemen# under a {ease for Its stare at the Shopping Center. Contractor has entered iota this Agreement to a~der to induce Tenentfo retain Contractor to perform certatn work at its stare. Contractor hereby agrees to INDEMNITY, SAVE & HOLB HARMLESS StoneEieiige Center, LLC, and iCimca Realty Corpora#ion, hereinafter coltecdvely referred to as landlord, its respBctlve agents and employees, assigns, and architects of and from all liabilities, claims, losses, damages, Injury, causes of actions and setts of whatever nature far personal Injury, Including death, and for property damage, arising out of or alleged to arise out of, or any conditions of, the work performed under this Contract, whether by Contractor or by any subcontractor, and whether any claim, cause of action, or suit is asserted against Landlord or ItS agents and employees, assigns, and architects, or Contractor, severally, jalntly, or Jointly and severally. Contractor hereby agrees to iNDEMN[1=Y, 5AVE & HOLD HAAMLES5 Landlord, its agents and ampioyees, assigns, and architects of aqd from any and all costs of any nature, Including without limitation lnvestigatlon, adjustment, attorneys fees, expert's fees, court costs, administrative costs, and other items of expense arising out of any clam, cause of action or sui# of the kind and nature herein set forth. NeEther Contractor nor any sub-contractor shalt fife any mechanic's, materiaimen's, or other hens either against the Leased Premises or the SftoppJng Center from any work, labor, services or materials supplied or performed by Contactor or by any sub-contractor. Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESS Landlord, Its agents• and employees, assigns, and architects of and from arty and etl costs of any nature, Including without limitation investigation, adjustment, attorneys fees, expert's fees, court costs, administrative costs, and other'ftems of expense arising out of any mechanic's, rnaterialmen's, or other Eiens filed against the either against the Leased Premises ar the Shopping Center by Carrtractor or by any sub-contractor. Contractor hereby agrees that it will obtain Comprehensive Genera{ Llabtilry insurance Including blanket Contractual LlabHity with minimum amount of~$3,000,000.00 Combined Single Limit for bodily Jnjury and property damage. Additionally, Contractor must also obtain Workers Compensation and ~ccupatfonal Disease Insurance with statutory limits and form as required by the State in which the work is to be performed, and Employers Liability with a Ilinit of not less than $1,000,000.00 for all damage. Certificates far ail insurance will be submitted to Landlord before commencement of any work. The CertJficates must indlaate that the "HOLD HARMLESS AGREEMENT' contractual indemnity as set forth In this agreement Is insured. Landlord must be named as art additional insured and the policy must provide that na less than 15 days advance written notice will be given to both the party to whom such Certificates are issued and the additiona{ Insured in the event of cancellation of the policies or a reduction In the limits of Ifabillties sat #orth above. At Landlord's request, Contractor will Immediately furnish Landlord with a true and complete copy of any insurance policy Landlord wants to renew. No invoices for payments will be honored unless such Certificates of Insurance (or the policy, If requested} had been flied iimeJy with l~ndford at 3333 New Hyde Park Road, Suite 100, New Hyde Park. NY 11042-0020. Dc-8-1 4128/2004 CB C:tsea1c71~+t1TEMP~Lease (5-490001 Oawn shughari 1075.dac Contractor acknowledges that Landlord did not retain Contractor to perfomti any work at the Sfioppfng Cantef and agrees that Contractor will not Took to Landlord for any compensation whatsoever far any work It pertorms at the Shopping Centsr. IN WITNESS HEREOF, this Contractor has executed this Agreement this day of .204_ CONTRACTOR: ay: Name: Title: IX•8-i A/2fi12004 CB C:lsealdienilTEMPiLease (i-dB000) Qavrtt Shcghari 1U75.doc LEASING LEGAL CONST. GUARANTY GUARANTY (hereln called "Guaranty") dated as of March 31, 2004, by DAWN SHUGHART, art individual, having an address at 805 Roxbury Road, iVewvflie, PA 17241. PRELIMINARY STATEMENT Rawn 5hughart is hereinafter called "Guarantor". Stonehedge Center, LLC, having an address at 3333 New Hyde Park Road, P.O. Box 5020, New Hyde Park, ewY~oJk t i 042-0020, is hereln and in the Lease called "Landlord". Dawn Shughart flea r4~, C'1s herein and in the Lease called "Tenant". Landlord and Tenant are finalizing a lease (herein called 'Lease") dated as of March 81, 2004, which demises to Tenant certain premises (hereln and in the Lease called "Leased. Premises") described In the Lease. The Leased Premises are located !n Landlord's shopping center In Carlisle, Pannsylvanla (hereln and In the Lease called "Shopping Center"}. Tenant is either wholly owned by Guarantor or Guarantor has a significant interest In the business affairs of Tenant Landlord is unwilling fo enter (nto the Lease with Tenant unless Guarantor exocutes and delivers this Guaranty to Landlord. Guarantor has received a copy of the Lease, has examined the Lease, and Es #amNiar with all the terms, covenants, and conditions cgntalned therein. Guarantor hereby covenants, warrants and represents that the malting of the Guaranty and the making of the Lease is In furtherance of fie business purposes ant is to the benefit of Guarantor and, ff the Guarantor is a corporation, the execution and delivery of the Guaranty has been duly approved by Guarantor's Board of Dlreotors. WITNESSETH: NOW, THEREFORE, in consideration of tits foregoing, Guarantor hereby agrees with Landlord as fa(iowq-: 1. Guarantor hereby guarantees all of the payments to be made 6y Tenant under the Lease. All such payments are herein and in the Lease called "Rent", and include Base Rent, Percentage Rent, Common Area Rent, Tax Rent, and addittcnai Rent (as such expressions era defined In the Lease) and all other sums, costs, expenses, charges, payments, indemnifications by Tenant to Landivrd, and deposits, as well as all sums payable as damages upon a default under the Lease. Guarantor hereby guarantees that each and ail of the foregoing will be paid In full when due in accordance with the Lease. Furthermore, Guarantor hereby guarantees that, in addJtian to paying ail sums descrbed herein and In the Lease, Tenant will faithfully pen`orm and observe each and every term, covenant, and condtion of the .Lease to 6e performed or observed by Tenant 2. This Guaranty (s an uncondlilanal, irrevocable and absolute guaranty of payment end performance. Guarantor's liability shall be primary and not derivative or secondary..lf for any reason any provision of the Lease shall not be completely and sMctly performed or observed by Tenant as required thereby, or if any item of Rent shall not be paid when due in, accordance With the ,provisions of _.the Lease, ,Guarantor. agrees to promptly perform ar observe, or cause the performance or observance of each such provfslen, and will immediataiy pay ail such items or Rent to the person entitled thereto pursuant to the provisions of the .Lease, in. all cases. regardless ofi whether Landlord shall have taken any steps to enforce any rights against Tenant or any other person to compel any such performance or observance or to collect the item(s) of Rent either pursuant to the provisions of the Lease, or at law, or in equity, and regardless of any other condition or contingency. Guarantor also agrees to pay to Landlord the costs and expenses (including reasonable attameys' flees} incurred by Landlord for collecting or attempting to collect any Item(s) of Ren# or othervvise enforcing the Lease against Tenant or collecting under or enforcing this Guaranty. Landlord shall have the right to enforce this Guaranty regardless of the receipt by Landlord of a security deposit from Tenant or the enforcement of any remedies against such security or the release of such security. 3. Guarantor's obligations under this Guaranty shall In no way. be affected •or impaired by reason of the happening at any time of any of the following with respect to either the Lease or the Guaranty, even if such happening occurs without notice to or consen# of Guarantor. (a) the waiver 6~ Landlord or its successors or assigns of the performance by Tenant of any provision(s) of the Lease; (b) the extension of the time for payment by Tenant of 3r31~waa ca c:L~aaScaenn7EMPlGUeranly (1-aE09D} Dawn Shughart 1075.DOC . _.~ ._ _ ~ ; • -i any {tem(s} of Rent or of the Ume for performance by Tenant'of any other obligations under the Lease; (c) the assignment, subletting, or mortgaging, or the purported assignment, subletting, or mortgaging, of all or part of Tenant's interest in the Lease or the Leased Premises whether or not" permitted by the' Lease, or permitted by' Landlord; (d} the modification or amendment (whether material or otherwise) of any obligation of Tenant sat forth in the Lease; (e) Landlord's taking or falling to take any action(s) referred to in the Lease; (f) the failure, omission, or delay of Landlord to enforce, assert,, or exercise any right, power, or rer•nedy conferred on Landlord In the Lease or by law or any aEtlon on the. part of Landlord granting indulgence or extension in any form; {g) the voluntary or! involuntary bankruptcy of Tenant ar the liquidation, dissolution, sale, or other disposition of! all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, ~asslgnment for the benefit of creditors; reorganization, arrangement, composition or readjustment of, or the disaffirmance of the Lease In any such proceeding; (h) the release c# Tenant from perforrance of any provision of the Lease by operation of law; (i} the receipt and acceptance by Landlord of notes, checks, or other Instruments for the payment of money made by Tenant or others, or any extensions or renewals thereof; or Q} any other cause, whether similar to or dissimilar from any of the foregoing. Furthermore, in the avant of:rejectfon or dlsaffltrnsnce of the Lease by Tenant or Tenant's trustee ]n bankruptcy pursuant to the United State Bankruptcy Cade or any other law affecting creditors'. rights, Guar~ittor wl(1, if Landlord so requests, assume all obligations and Ifabilitles of Tenant under the Leas, to the same extent as if Guarantor had been originally Hamad instead of Tenant as a party to the Lease and there had bean no rejection ar disafflrmance; and Guarantor will confimt `such assurnptian in writing a# the request of Landlord on or after such rejection or disafflrmance. Guarantor, upon such assumption, shag have afl rights of Tenant under the Lease (to the extent permitted by few). 4. Guarantor hereby waives notice of: a} the acceptance of this Guaranty; b} notice of any 6reacii or non-performance of the Lease by Tenant, or the failure to satisfy any obligations or Iiabi!'ties contracted or incurred by Tenant; and, c) notice of execution and delivery of the Lease. Additionally, Guarantor Waives all suretyship defenses and consents to the Supreme Court of New York State or any other approprfate Court of that State having jurisdlcticn in which to bring arty claim by Landlord. 5. Thts Guai•ant}i may be enforced and shall be governed by and construed in accordance with the laws of the State of Now York. 6.. This Guaranty may not and cannot be cancelled, terminated, modified, or amended except by a written agreement executed try Landlord and delivered to Guarantor. Any attempted cancellation, tem~fnation, modlfieatian, or amendment without such agreement executed and delivered by Lar}dlard shalt be veld. 7. No waiver by Landlord of the payment by Guarantor of any of its obligations contained in this Guaranty,.or any extension of time for the payment by Guarantor of any such obligations, shalt affect or impala' this Guaranty or constitute a waiver or reiinqufshment of any rights of Landlord for the future. No action brought under this Gueranry against Guarantor and no recovery had in pursuance thereof shat! be any bar ar defense to any further action or recovery which may be brought or had under this Guaranty by reason of any further default(s) of Tenant. e. Ali the provisions of this Guaranty shaii"inure to the benefit of Landlord and its grantees, successors, and as$igns; and shalt Inure to the benefit a# any fciture owner of the fee title of wFiicfi ~tEie LeasedPremises'are a part end shall inii~e'to~ttie tiaiisfif of'any lessee to wham the property shall have been leased contemporaneously with a transfer of fee title (a so-coiled "sale and IeasebacCc transaction"); and aJI the provis(ons of_this Guaranty shall be binding upon Guarantor and its h'elrs,~legal representatives, successors and assigns. i3. This Guaranty shall be in effect with respect to any and aEl renewals, extensions, or continuations of the Lease whether or not the Laase provides for or permits such renewals, extensions, or continuations, and whenever- such renewals, extensions, or continuations shall commence, and whether such renewals, extensions, or continuations shall be pursuant to a renewal, extension, or continuation agreemerrt incorporating all or parts} of the Lease by reference or~shalCtie p`'rsuar~to a new and separate lease agreement. The p~ovlslons of this Guaranty shall also ap~l~ with respect to such perlod(s} of time that Tenant holds aver, un41 the Leased Premises has been su~randered in accordance with the provisions of the Lease, 2 3/31!2004 C8 C:lsealcllent\TEMP1Gueraniy (1-49080} Dawn SAugheK 1075.DOC 10. As a further inducement to Landlord to•make and enter into Ehe Lease and in consideration thereof, Guarantor hereby covenants and agrees that in any action or proceeding brought by Landlord an, under ar by virtue of this Guaranty or arising out of the terms, covenants and provisions of this Guaranty or of the Lease, Guarantor shell and hereby does waive trial by Jury. 11. Guarantor may be )Dined in any action against Tenant In connection with the Leese and recovery m y be had against Guarantor In such action or in any independent action against Guarantor. ~ , 8i 12. If this Guaranty is signed by more than one person or entity as Guarantor, then the persons and/or entit<es era Jointly and severally. referred to harem as Guarantor and each such person or entity shall be jolnUy and severally liable for a11,of the oblige#ions of Guarantor. 13. All of Landlord's rights and remedies under the Lease and under this Guaranty shall be distinct, separate and cumulative end no such right or remedy shall 6e exctustve of, ar a waiver of, any of the others. 14. Any notice sefnt by Guarantor to Landlord or by Landlord to Guarantor shall be sufficient ff sent by United Sta~s Registered or Certified Mail, Return Receipt Requested, ar by registered overnight courier e.g. Fedora! Express), to the address of such party herein specified or is suoh other address as such party shall have designated by slmlfar written notice; and such notice shall be deemed to have heen given as of the day it was sent as Indicated by the postmark on the envAlope'contalning the notice or comparable evidence. 15. This Guaranty, the obligattoris and Itabllhies of the Guarantor hereunder, and any payment by Guarantor pu. uant hereto, shall be without recourse by the Guarantor against the Tenant whose obligadons'~r liabilities are guarantied by this Guaranty. • ~. IN WITNESS WHEREOF, Guarantor has caused this Guacantytc be duly executed as of the day. and, year.first above written_ .. WITNESSES TO GUARANTOF#: GU~~~ a~tn.~ ~-n.rr! / DAWN SH GHAAT ' Social security No.: ~ar>/Oa 3 ~ y~' • 1 ~~ ~ ACKNOWLEDGMENT FOR GUARANTOR State of ,vs )~r~•~ County of~u~,b~-~/.~~ ~, /~ On. the .arn.c~ day; of APR. ~ In the year 2404 before •me, the undersi a Notary .Public in and far said State, personally appeared ,~r--,Z~' ~ personally known to me to be the individual whose name Is subscribed to the with! instrument and acknowledged to ma that he/she executed the same In his capacity, and that ~y his/h9r signature on the lnstrurnent, the individual or the person upon behalf of which the lndi'vldual acted, executed the instrument, ~~ Notary 1? blic . I Atrll B. SEHSt3fiCN. AQTAH'l t'flBltC CARIJ~ ~RO~ tA1MBE ~J~t11 CO a1o 1' 3!31!2404 CB C:LeelclWintlTEMP1Gue~en~y (1-49Q9D) Davin Shugheri 1fl75.000 1 ~' ~ ri c~ ~-: ., .-,~ `. •s `, ~+~ ,j t ~ -~ ~. . ~' t r _ r f SHERIFF'S RETURN - REGULAR ~[' CASE NO: 2007-04126 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CEDAR-STONEHEDGE LLC vs DAWN SHUGHART REALTY LLC ET AL KENNETH GOSSERT Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within CONFESSION OF JUDGMENT was served upon DAWN SHUGHART REALTY LLC the DEFENDANT at 0825:00 HOURS, on the 18th day of July 2007 at 1156 WALNUT BOTTOM RD CARLISLE, PA 17013 RHONDA ROWE, OFFICE MANAGER by handing to ADULT IN CHARGE a true and attested copy of CONFESSION OF JUDGMENT COMPLAINT FOR CONFESSION OF JUDGMENT RULE 236 NOTICE, RULE 2958.1 NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 4.80 Postage .58 Surcharge 10.00 1 .oo y' 141b~~-- 33.38 Sworn and Subscibed to before me this day of , So Answers: ~~~~~~~ R. Thomas Kline 07/19/2007 RHOADS & By: A.D. SHERIFF'S RETURN - REGULAR 4~ ~' CASE NO: 2007-04126 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CEDAR-STONEHEDGE LLC VS DAWN SHUGHART REALTY LLC ET AL KENNETH GOSSERT Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within CONFESSION OF JUDGMENT was served upon SHUGHART DAWN the DEFENDANT at 0825:00 HOURS, on the 18th day of July 2007 at 1156 WALNUT BOTTOM RD CARLISLE, PA 17013 by handing to RHONDA ROWE, OFFICE MANAGER, ADULT IN CHARGE a true and attested copy of CONFESSION OF JUDGMENT together with COMPLAINT FOR CONFESSION OF JUDGMENT RULE 236 NOTICE, RULE 2958.1 NOTICE and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge ~j1a~o~ ~.,~- Sworn and Subscibed to before me this of So Answers: 6.00 , .00 10.00 R. Thomas Kline .00 16.00 07/19/2007 RHOADS & SINON By: day A.D. Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717)233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA v. CIVIL ACTION -LAW DAWN SHUGHART REALTY, LLC NO. 07-4126 and DAWN SHUGHART, individually Defendants ANSWER TO PETITION TO OPEN/STRIKE JUDGMENT NOW COMES Plaintiff/Respondent, Cedar-Stonehedge, LLC ("Cedar" or "Landlord"), by its undersigned attorneys, Rhoads & Sinon LLP, and files the within Answer to Petition to Open/Strike Judgment, stating as follows: 1. Admitted in part and denied in part. It is admitted that Petitioners are Dawn Shughart Realty, LLC, a Pennsylvania limited liability company ("Shughart Realty"), and Dawn Shughart ("Shughart"), an adult individual (collectively, "Petitioners"). Cedar is without knowledge or information sufficient to form a belief as to the truth of Petitioners' allegation regarding Shughart's address, and therefore denies that averment. 2. Admitted. 3. The documents referenced in this Paragraph are writings that speak for themselves. 669136.2 Petition to Open 4. Cedar incorporates by reference the averments set forth in Paragraphs 1 through 3 above, as if fully set forth herein. 5. The document referenced in this Paragraph is a writing that speaks for itself. 6. The document referenced in this Paragraph is a writing that speaks for itself. By way of further answer, Cedar is not required to aver that its attempts to confess judgment against Shughart are in conformance with the laws of the State of New York. Additionally, any question as to the validity of the judgment as to Shughart, obtained by virtue of the Guaranty, has no affect upon the validity of the judgment confessed against Shughart Realty. 7. The document referenced in this Paragraph is a writing that speaks for itself. 8. Admitted. However, by way of further answer, Cedar was not required to provide a document supporting its allegation that the Lease was assigned to it. Pa. R. Civ. P. No. 2950, et seQ., govern the procedure regarding confession of judgments for money. Pa. R. Civ. P. No. 2952 sets forth the required form of complaints filed under Pa. R. Civ. P. No. 2951(b). Cedar's Complaint fully complies with the requirements of Pa. R. Civ. P. No. 2952, which provides that the Complaint shall contain a "statement of any assignment of the instrument." Pa. R. Civ. P. No. 2952(a)(4). Further, Petitioners do not contend that the Lease was not assigned to Cedar. 9. Denied. Pa. R. Civ. P. No. 2950, et sea., govern the procedure regarding confession of judgments for money. Pa. R. Civ. P. No. 2952 sets forth the required form of complaints filed under Pa. R. Civ. P. No. 2951(b). Cedar's Complaint fully complies with the requirements of Pa. R. Civ. P. No. 2952. Further, Petitioners do not contend that the amount of the judgment is incorrect in any respect. Petition to Strike 10. Cedar incorporates by reference the averments set forth in Paragraphs 1 through 9 above, as if fully set forth herein. 11. The document referenced in this Paragraph is a writing that speaks for itself. 12. The document referenced in this Paragraph is a writing that speaks for itself. 13. The document referenced in this Paragraph is a writing that speaks for itself. 14. The document referenced in this Paragraph is a writing that speaks for itself. 15. The allegations set forth in this Paragraph are conclusions of law to which no response is required. To the extent a response is deemed appropriate, the allegations contained therein are denied. Pa. R. Civ. P. No. 2959(a)(2) specifies three instances in which the issue of the voluntary, intelligent and knowing waiver of due process rights maybe raised. The first is in support of a request for a stay when the Court has already denied a prior request for a stay despite timely filing of that request and the presentation of prima facie evidence of a defense. The second is when personal property has been levied upon or attached without prior notice and hearing. The third is when a defendant in possession of leased residential real property has been evicted without prior notice and hearing. See Explanatory Comment - 1996 to Pa. R. Civ. P. No. 2959. None of these instances are implicated in the case presently before the Court. Accordingly, this issue is not properly before the Court. 16. The allegations set forth in this Paragraph are conclusions of law to which no response is required. To the extent a response is deemed appropriate, the allegations contained therein are denied. Petitioners authorized Cedar to confess judgment by virtue of Shughart's execution of the Lease. Further, as our Supreme Court has noted, a petition to strike a judgment operates as a demurrer to the record and "may be granted only for a fatal defect or irregularity appearing on the face of the record." Resolution Trust Corp. v. Copley Qu-Wayne Associates, 683 A.2d 269, 273 (Pa. 1996). No such fatal defect or irregularity appears on the face of this record. 17. The allegations set forth in this Paragraph are conclusions of law to which no response is required. To the extent a response is deemed appropriate, the allegations contained therein are denied. Again, a petition to strike a judgment operates as a demurrer to the record and "may be granted only for a fatal defect or irregularity appearing on the face of the record." Resolution Trust Corp. at 273. In deciding the merits of a petition to strike, the court is limited to review only "the record as filed b~party in whose favor the warrant is 'ven, i.e., the complaint and the documents which contain confession of judgment clauses." Id. (Emphasis in original). "Matters dehors the record filed by the party in whose favor the warrant is given will not be considered. If the record is self-sustaining, the judgment will not be stricken." Id. The confession of judgment provisions in the Lease, executed by Shughart on behalf of Shughart Realty, clearly authorize Cedar to enter judgment against Shughart Realty in the event of a default. The provisions are set out in capitalized, bold-faced type, clearly set apart from the rest of the instrument, so as to draw Petitioners' attention thereto and otherwise comply with the requirements for confession of judgment provisions. Accordingly, the record is not fatally defective or irregular on its face, and a petition to strike must be denied. 18. The allegations set forth in this Paragraph are conclusions of law to which no response is required. To the extent a response is deemed appropriate, the allegations contained therein are denied. The Lease clearly provides that Cedar is entitled to each of the categories of damages itemized in its Complaint in Confession of Judgment. See Lease, Section 15. Further, a finding that the Complaint requires consideration of matters outside of the Lease would not render the record fatally defective or irregular on its face, and a petition to strike must be denied. See Resolution Trust Corp. at 273. 19. Denied. Cedar does not seek judgment on behalf of a person. Cedar seeks judgment on behalf of Cedar, a Delaware limited liability company. 20. Denied. This allegation requires that one reach a conclusion of law. Accordingly, no response is required. WHEREFORE, Respondent, Cedar-Stonehedge, LLC, requests that this Honorable Court deny Petitioners Petition to Open/Strike Judgment and permit Cedar to proceed with enforcing its judgment. Respectfully submitted, BROADS & SINON LLP Dated: November 28, 2007 By: 0~~`t~' Ke eth J. Rollins, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for the Respondent, Cedar- Stonehedge, LLC CERTIFICATE OF SERVICE I hereby certify that on this 28`h day of November, 2007, a true and correct copy of the foregoing Answer to Petition to Open/Strike was served by means of United States mail, first class, postage prepaid, upon the following: Dawn Shughart Realty, LLC Dawn Shugart, individually c/o Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, Pennsylvania 17013 J f , 'li Cons ~d._. C"? ~ C ~-~~ r ~ a ,., -~-, t.t.) y s - i C ~~ y, {: ~ 7 as a (~ r F'f'r .: ~ ~: ~' ....,~ rya ~ G.r'7 J .w ;~ ~ ~ s Kenneth J. Rollins, Esquire Attorney I.D. No. 200578 BROADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff CEDAR-STONEHEDGE, LLC Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAWN SHUGHART REALTY, LLC and DAWN SHUGHART, individually Defendants CIVIL ACTION -LAW N0.07-4126 PRAECIPE FOR DETERMINATION TO THE PROTHONOTARY: Kindly submit Plaintiff/Respondent Cedar-Stonehedge, LLC's Answer to Petition to Open/Strike Judgment for determination. The Petition was filed on August 13, 2007. To date, a Rule to Show Cause has not been issued. Despite this fact, Respondent has filed its Answer to that Petition contemporaneously herewith. Respectfully submitted, 669141.1 Dated: November 28, 2007 BROADS & SINON LLP By: K eth J. Rollins, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for the Plaintiff, Cedar- Stonehedge, LLC CERTIFICATE OF SERVICE I hereby certify that on this 28th day of November, 2007, a true and correct copy of the foregoing Praecipe for Determination was served by means of United States mail, first class, postage prepaid, upon the following: Dawn Shughart Realty, LLC Dawn Shughart, individually c/o Karl E. Rominger, Esquire Rominger & Associates 155 South Hanover Street Carlisle, Pennsylvania 17013 f' Gam- e L. Sneed s~ ~~ ... ' ~ -c , f -mss ~ ;-- J" ~ ~ ~~~~1 __ ~:~ .,.-- i ., ~ ~~