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Home My WebLink About08-0841FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. 0g _ $? ctv i 7? Defendants CONFESSION OF JUDGMENT FOR MONEY Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint filed in this action, we appear for the Defendants and confess judgment in favor of the Plaintiffs and against the Defendants as follows: Principal Sum: $18,170.57 Other Authorized Items: $ 5,000.00 (Attorneys' Commission not less than $5,000.00) $23,170.57 FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: - J60wk 2? FRANK G. MUR , ESQUIRE CHRISTINA M. HUGHES, ESQUIRE Attorneys for Defendants Judgrr?t Entered A4Above FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. 08- T, Defendants : COMPLAINT FOR CONFESSION OF JUDGMENT UNDER PENNSYLVANIA RULES OF CIVIL PROCEDURE 2950. ET SEO Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, (hereinafter "Plaintiffs" or "Landlords"), by and through their attorneys Frey, Petrakis, Deeb, Blum & Murphy, P.C., file this Complaint for judgment by confession pursuant to Rules 2950, et sea., of the Pennsylvania Rules of Civil Procedure and, in support hereof, state as follows: THE PARTIES Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, are owners of a shopping center commonly known as East Gate Plaza, located at 5205 Simpson Ferry Road, Mechanicsburg, Pennsylvania 17055, as tenants in common and have a place of business located at 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046. 2. Defendant, Foxy Fitness, LLC, t/a Contours Express (hereinafter "Contours Express" or together with Co-Defendants "Defendants"), upon information and belief, is a business which last operated at 5205 Simpson Road, Suite 18, Mechanicsburg, Pennsylvania 17055 with a last known address at 1916 County Line Road, York Springs, PA 17372. 3. Defendant, Tammy Sisto (hereinafter "Sisto" or together with Co- Defendants "Defendants"), upon information and belief, is an individual operating a business and has a last known address of 1916 County Line Road, York Springs, PA 17372. 4. Defendant, Rebecca Fox (hereinafter "Fox" or together with Co- Defendants "Defendants"), upon information and belief, is an individual operating a business and has a last known address of 1916 County Line Road, York Springs, PA 17372. 5. Pintzuk Brown Realty Group (hereinafter "Pintzuk") is an authorized agent of and acts on behalf of Plaintiffs and has a place of business located at 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046. See Affidavit of Scott Homel attached hereto, incorporated herein, and marked as Exhibit "A." COUNT I FOR JUDGMENT OF MONEY (PAST RENT OWED) Pa.R.C.P. 2950, et seq. 6. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein at length. 7. Defendants were in occupancy and possession of 1,900 square feet of commercial space known as Suite 18, located at the shopping center commonly known as East Gate Plaza, located at 5205 Simpson Ferry Road, Mechanicsburg, Pennsylvania 17055 (the "Property") and utilized the space as a fitness center known as Contours Express during the relevant time period. 8. The owners of the Property, during the relevant time period, were Home Elite Ltd. and P.R. Real Estate, LLC. 9. The Defendants leased the Property from Home Elite Ltd. and P.R. Real Estate, LLC for commercial use pursuant to a written agreement (as the same has been amended, assigned, restated, or otherwise modified through the date hereof, "Lease"). See a true and correct copy of the Lease which is attached hereto, incorporated herein, and marked as Exhibit "B;" all applicable terms are highlighted in yellow for the Court's convenience. 10. Sisto personally guaranteed the financial obligations of the Lease for a period of two (2) years from the Rent Commencement Date, November 1, 2005, as defined by the Lease. See Exhibits "C" and "H" of Exhibit B. 11. Fox personally guaranteed the financial obligations of the Lease for a period of two (2) years from the Rent Commencement Date, November 1, 2005, as defined by the Lease. See Exhibits "C" and "H" of Exhibit B. 12. Pursuant to the terms of the Lease, the Defendants are required to pay to the Plaintiffs a monthly fixed Rent. See Exhibit B. 13. In addition, the Defendants are obligated under the Lease to pay the Plaintiffs Additional Rent in the form of, inter alia, operating expenses, utilities, insurance, and taxes. See Exhibit B. 14. Defendants have defaulted on their obligations under the Lease by virtue of their failure to pay the Plaintiffs Rent and Additional Rent in the amount of $18,170.57, as follows: r Y /E 2005 CTI Reconciliation Charge $689.72 RENT (10/2006) $1,500.00 Cam/Taxes/ Insurance (10/2006) $550.00 October Late Fees, 10% of 2050.00 $205.00 Chk No. 1333 $4,100.00 Rent 11 2006 $1,583.33 Cain/Taxes/ Insurance (11/2006) $550.00 Rent 12 2006 $1,583.33 Cam/Taxes/Insurance (12/2006) $550.00 Chk No. 1355 $2,216.16 Rent 1 2007 $1,583.33 Cam/Taxes/Insurance (1/2007) $550.00 Chk No. 1363 $2,133.33 January Late Fee, 10% of $0.05 $0.05 Rent (2/2007) $1,583.33 Cam/Taxes/ Insurance (2/2007) $550.00 February Late Fee, 10% of $2133.83 $213.38 Rent (3/2007) $1,583.33 Cam/Taxes/ Insurance (3/2007) $550.00 March Late Fees, 10% of $4,267.16 $426.72 Rent (4/2 07 $1,583.33 Cam/Taxes/Insurance (412007) $550.00 Chk No. 1022 $1,583.33 April Late Fees, 10% of $4817.16 $481.72 Rent (5/2007) $1,583.33 Cam/Taxes/ Insurance (5/2007) $550.00 Chk No. 1041 $3,166.66 May Late Fees, 10% of $3783.83 $378.38 Rent 6 2007 $1,583.33 Cam/Taxes/ Insurance (6/2007) $550.00 Chk No. 1045 $3,166.66 June Late Fees, 10% of $2750.50 $275.05 Rent 7 2007 $1,583.33 Cam/Taxes/ Insurance (7/2007) $550.00 Jul Late Fees, 10% of $4883.83 $488.38 2006 Operating Expense Reconciliation Charge $983.20 Rent 8 2007 $1,583.33 Cam/Taxes/ Insurance (8/2007) $550.00 August Late Fees, 10% of $7017.16 $701.72 Rent (9/2007) $1,583.33 Cam/Taxes/ Insurance (9/2007) $550.00 September Late Fees, 10% of $9150.49 $915.05 Rent 10 2007 $1,583.33 Cam/Taxes/ Insurance (10/2007) $550.00 October Late Fee, 10% of $11283.82 $1,128.38 TOTAL $18,170.57 15. By letter dated September 10, 2007, Pintzuk notified Defendants of Defendants' failure to comply with various provisions of the Lease. Through the letter, Pintzuk further advised Defendants that, unless Defendants made payment in full of the amounts owing under the Lease, Pintzuk would exercise any and all rights and remedies available to the Plaintiffs for non-payment of rent. See a true and correct copy of the September 10, 2007 Letter which is attached hereto, incorporated herein, and marked as Exhibit "D." 16. By letter dated January 15, 2008, Pintzuk notified Defendants of Defendants' failure to comply with various provisions of the Lease. Through the letter, Pintzuk further advised Defendants that, unless Defendants made payment in full of the amounts owing under the Lease, Pintzuk would exercise any and all rights and remedies available to the Plaintiffs for non-payment of rent. See a true and correct copy of the January 15, 2008 Letter which is attached hereto, incorporated herein, and marked as Exhibit "D." 17. As of the date hereof, the Defendants have not cured their default. 18. Under the Lease, the Plaintiffs are empowered to confess judgment against Defendants for all back rent owed. See Exhibit B. 19. Under the Lease, the Plaintiffs are also entitled to recover from the Defendants a "reasonable attorney's commission" of not less than $5,000.00. See Exhibit B. 20. Thus, as of October 31, 2007, the date until which Sisto and Fox personally guaranteed the financial obligations of the Lease, the amounts due and owing by the Defendants to the Plaintiffs under the Lease are as follows: Unpaid Rent $18,170.57 (including Minimum Rent and Additional Rent) Attorneys' Commission $ 5,000.00 **$$23,170.57 **total amount due under the lease as of October 31, 2007 (subject to increase for interest which shall accrue on all delinquent amounts from the date past due until paid at a rate equal to the lower of a rate of one and one-half percent (1- 1/2%) per month or fraction thereof from the date such payment is due until paid (Annual Percentage Rate = 18%), or the highest rate permitted by applicable law.) See Exhibit B. 21. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 22. No judgment has been entered on the Lease in any jurisdiction. 23. The Warrant of Attorney is less than twenty (20) years old. WHEREFORE, Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, hereby demand judgment by confession in the amount of $23,170.57 against Defendants, Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox, as authorized by the warrant of attorney appearing in the attached Lease, together with such other and further relief as the Court may deem proper. FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: _A/W_• 16-4 Dated: WoOr FRANK G. MURPHY, ESQUIRE CHRISTINA M. HUGHES, ESQUIRE Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC VERIFICATION I, Mary Duffy, state that I am authorized to make this Verification on behalf of the Plaintiffs, and that the facts set forth in the preceding Complaint are true and correct to the best of my information and belief. This Verification is made with knowledge of the penalties contained in 18 Pa.C.S.A. §4904, relating to unsworn verification to authorities. By: Mary ffy, As ager Pintzu Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC Dated: 2.1' e4 FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. CERTIFICATION OF ADDRESSES Christina M. Hughes, Esquire, certifies, to the best of her knowledge, information, and belief, that the addresses of Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, and Pintzuk Brown Realty Group, Agent of Plaintiffs, are 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046; and the last known address of Defendants, Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox, is 1916 County Line Road York Springs, PA 17372. FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: CHRISTINA M. H G S, ESQUIRE Attorney for Plaintiffs, Dated: Home Elite Ltd. and P.R. Real Estate, LLC (! (Jj' FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants : AFFIDAVIT STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY SS. Mary Duffy, being duly sworn according to law, deposes and says: that she is an Asset Manager for Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; that the facts set forth in the Complaint in Confession of Judgment are true and correct to the best of her knowledge, information, and belief; and, that the Exhibits attached to the Complaint in Confession of Judgment are true and correct copies of the originals, highlighted for the Court's convenience. Sworn to and Subscribed before me this 1 I" day of ?eib?,RC , 2,008. Notary Public NOTARIAL SEAL Public Daniel R. Henderson, Notary Jenkintown Township, Montgomery My commission expires May Mary Dfilty, As ager Pintzu Brown Re Ay Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. AFFIDAVIT OF INCOME STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY SS. Mary Duffy, being duly sworn according to law, deposes and says: that she is an Asset Manager of Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; and, that to the best of her knowledge, information, and belief, at the time of the signing of the document containing provision for judgment by confession in the said matter, the income of Defendants, Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox, was in excess of $10,000 per year. Sworn to and Subscribed before me this cr day of fagec A O.y , 2008. ary Pub is NOTARIAL SEAL Daniel R. Henderson, Notary Public Jenkintown Township, Montgomery County My commission expires May 14, 2009 Mary Du , Asset a r Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants : AFFIDAVIT OF NONAPPLICABII.ITY OF GOODS AND SERVICES INSTALLMENT SALES ACT AND AFFIDAVIT OF NON-CONSUMER CREDIT TRANSACTION AND NON-RESIDENTIAL LEASE STATE OF PENNSYLVANIA SS. COUNTY OF MONTGOMERY Mary Duffy, being duly sworn according to law, deposes and says: that she is as Asset Manager for Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; that the Confession of Judgment does not arise out of a retail installment sale, contract, or account, as defined under the Goods and Services Installment Sales Act, 69 P. S. § 1101, et seg.; that the Confession of Judgment is not being entered against natural person(s) in connection with a "consumer credit transaction" as that term is defined in Pa.R.C.P. 2950 (as amended); that the Confession of Judgment is not being entered in connection with a residential lease; and, that the foregoing facts are true and correct to the best of her knowledge, information, and belief. Sworn to and Subscribed before me this /`7- day of F &Zj AA2h , 2008. 4, 4". Mary D fy, As ager Pintzuk Bro ealty Group, otary Public Agent of Home Elite Ltd. and P.R. NOTARIAL SEAL Real Estate, LLC Daniel R. Henderson, Notary Public Jenkintown Township, Montgomery County My commission expires May 14, 2009 FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants : AFFIDAVIT OF DEFAULT STATE OF PENNSYLVANIA SS. COUNTY OF MONTGOMERY Mary Duffy, being duly sworn according to law, deposes and says: that she is an Asset Manager of Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; that Defendants, Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox, entered into the Lease (as defined in the Complaint in confession of judgment filed in the within action), a true and correct copy of which is attached to the Complaint; that Defendants are in default under the Lease by failing to pay rent owed to Plaintiffs. There is presently $23,170.57 (principal sum plus attorneys' commission) due and owing under the Lease. Sworn to and Subscribed before me this /"'- day of "4r_ , 2008. otary Public NOTARIAL SEAL Daniel R. Henderson, Notary Public Jenkintown Township, Montgomery County My commission expires May 14, 2009 ary D , A ager Pintzu rown Group, Agent of Home Eee Ltd. and P.R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. AFFIDAVIT OF NON-MILITARY SERVICE STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY SS. Mary Duffy, being duly sworn according to law, deposes and says: that she is an Asset Manager of Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; and, that to the best of her knowledge, information, and belief, the Defendants are not in the Military or Naval Service of the United States, nor any State or Territory hereof or its allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940 and the amendments thereto or the Servicemembers Civil Relief Act. Sworn to and Subscribed before me this /15'f day of f:EF&r,,d ,cy , 2008. N tary Public NOTARIAL SEAL Daniel R. Henderson, Notary Public Jenkintown Township, Montgomery County My commission expires May 14, 2009 Mary D f, 'A ager Pintzu rown e Group, Agent of Home Elite Ltd. and P. R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW FOXY FITNESS, LLC, t/a Docket No. CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants PRAECIPE FOR ASSESSMENT OF DAMAGES AND JUDGMENT BY CONFESSION FOR MONEY PURSUANT TO PA.R C.P 2951, ET SEO TO THE PROTHONOTARY: Pursuant to Pa.R.C.P. 2951 et sea., please assess damages and enter judgment against Defendants, Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox, in favor of Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, in the amount of $23,170.57, as follows: Principal Sum: $18,170.57 Other Authorized Items: $ 5,000.00 (Attorneys' Commission not less than $5,000.00) $23,170.57 FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C By: , FRANK G. M RP ESQUIRE CHRISTINA M. HUGHES, ESQUIRE Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC Dated: -*?E FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants : AFFIDAVIT OF BUSINESS TRANSACTION STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY SS. Mary Duffy, being duly sworn according to law, deposes and says: that she is an Asset Manager of Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; and, that the transaction upon which Judgment is being entered by Confession was a business and commercial transaction. Sworn to and Subscribed before me this ?0' day of 2008. otary Public N=SNotary Daniel Rublic Jenkintown County My comm, 2009 Z?4 ot V I A; Mary D y, As ger Pintzuk Brown Real Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants Notice Under Rule 2958.1 of Judgment and Execution Thereon Notice of Defendants' Rights To: Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox (Defendants) A judgment in the amount of $23,170.57 has been entered against you and in favor of the Plaintiffs 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 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 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 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 Dated: A/6 4 (ld r FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: _ /14?. ;,444 Frank G. Murphy, quire Christina M. Hughes, Esquire Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. NOTICE UNDER 42 PA. C 3 A .42737 .1 To: FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 A judgment in the amount of $23,170.57 has been entered against you and in favor of the Plaintiffs without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. 42 Pa. C.S.A. § 2737 states in part as follows: A debtor who has been incorrectly identified and had a confession or judgment entered against him may petition the court for costs and reasonable attorney fees as determined by the court. The written instructions regarding the procedure to follow to strike the judgments are not prescribed in detail. For this reason, you should contact an attorney for assistance. However, you are advised that Pa. R.C.P. 2959, provides as follows: Striking Off or Opening Judgment; Pleadings; Procedure (a)(1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has been stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule [of Civil Procedure] 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule [of Civil Procedure] 2956.1(c) (2) or Rule [of Civil Procedure] 2973.1(c), the petition shall be filed within thirty days after such service. Unless the Defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the Plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule [of Civil Procedure] 440. (e) The Court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open judgment. (fl The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. (9)(1) A judgment shall not be stricken or opened because of a creditor's failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor. (2) Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of subdivision (g) which have not been stricken or opened as of the effective date and (2) judgments entered on or after the effective date. 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. 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 S. Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 Dated: FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: 5VXA ?' Frank G. Murph squire Christina M. Hughes, Esquire Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC 1601 Market Street, 26th Floor Philadelphia, PA 19103 215) 563-0500 I?x FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. AFFIDAVIT STATE OF PENNSYLVANIA SS. COUNTY OF MONTGOMERY : Scott Homel, being duly sworn according to law, deposes and says that he is authorized to make this affidavit on behalf of Home Elite Ltd. and P.R. Real Estate, LLC and that Pintzuk Brown Realty Group is an authorized agent of and authorized to act on behalf of Home Elite Ltd. and P.R. Real Estate, LLC, as concerns the property owned by Home Elite Ltd. and P.R. Real Estate, LLC as tenants in common at East Gate Plaza, loc 'im son Ferry Road, Mechanicsburg, PA 17055. Sworn to and Subscribed Signe :3 before me this f s?" day of. 2008. Public NOTARIAL SEAL Daniel R. Henderson, Notary Public Jenkintown Township, Montgomery County My commission expires May 14, 2009 Scott Homel Name: President of Home Elite Ltd. and Tenants in Common Coordinator of Home Elite Ltd. and P.R. Real Estate. LLC Title: i ?l?l? k--' BASIC LEASE PROVISIONS The following Basic Lease Provisions embody the agreement of the parties hereto, subject to further terms and conditions set forth elsewhere in this Lease. Should the terms set forth below differ from any term or condition in the Lease, then the Lease shall be deemed controlling. Parties: Landlord: PR REAL ESTATE, LLC & HOME ELITE, LTD. AS TENANTS IN COMMON Tenant: FOXY FITNESS, LLC A CONTOURS EXPRESS FRANCHISEE Leased Premises or Premises: EAST GATE PLAZA MECHANICSBURG, PA SUITE 18 (1) Term: Four (4) Years, Two (2) Months (2) Date for Delivery of Possession: No later than July 30, 2005 (3) Rent Commencement Date: Sixty (60) Days after delivery of possession. (4) Beginning of Term: Delivery of Posession (5) Lease Expiration Date: POO e, .Years after the Rent Commencement Date C-4) (6) Lease Year & Base Rent: -: -- Lease Year 1 $18,000.00 per year ($1,500.00/mo.) Lease Year 2 $19,000.00 per year ($1,583.33/mo.) Lease Year 3 $20,000.00 per year ($1,666.67/mo.) Lease Year 4 $21,000.00 per year ($1,750.00/mo.) (7) Option Term: Two (2), Three (3) Year Options (8) Option Term Base Rent: First Option Term Year 1 $21,000.00 per year Year 2 $22,000.00 per year Year 3 $23,000.00 per year Second Option Term Year 1 $24,000.00 per year Year 2 $25,000.00 per year Year 3 $26,000.00 per year (9) Gross Square Feet of Lease Template PA the Leased Premises: 1,900 ± square feet (10) Gross Square Feet of Building(s) in the Center (the "Rentable Area"): 36,000 square feet (11) Tenant's Proportionate Share: 5.278% (12) Additional Rent: Tenants full Proportionate Share: CAM, Taxes, Insurance. Estimated CTI = $550.00 Per Month (13) Tenant's Trade Name: CONTOURS EXPRESS (14) Security Deposit: $1,500.00 (15) Use: Women's Fitness Center (16) Execution Deadline: July 10, 2005 (17) Delivery Condition: As-Is, Where-Is (18) Rent: The Base Rent plus any and all Additional Rent charges under the Lease. (19) Trash Removal: Tenant responsible to supply dumpster for Tenants Trash. (20) Percentage Rent: None (21) Notices: (22) Lease Exhibits: 2 This Agreement is made on JUNE' * , 2005 BETWEEN PR REAL ESTATE, LLC & HOME ELITE, LTD. AS TENANTS IN COMMON residing or located at c% Pintzuk Brown Realty Group, Inc, 491 Old York Road, Suite 200, Jenkintown , PA 190406 herein designated as the' andlord," AND FOXY FITNESS, LLC, A CONTOURS EXPRESS FRANCHISEE residing or located at 1916 COUNTY LINE ROAD, YORK SPRINGS, PA 17372 herein designated as the "Tenant. 1. Leased Premises. The Landlord does hereby lease to the Tenant and the Tenant does hereby rent from the Landlord, the Leased Premises (also know n as the "Premises") as described in the Basic Lease Provisions, supra. 2. Term. The Landlord does hereby lease to the Tenant and the Tenant does hereby rent from the Landlord, the Leased Premises for the Term as described in the Basic Lease Provisions, supra. 3. Use of Premises and Common Areas. Tenant shall in good faith continuously throughout the Term of this Lease conduct and carry on in the entire Premises the type of business described in Article 15 of the Basic Lease Provisions using Tenant's trade name, and the Premises shall not be used for any other purpose. Tenant specifically agrees that its use of the Premises shall never violate any of the restrictions set forth on Exhibit "D" attached hereto. Tenant shall not sell, display or solicit sales in the Common Areas. Tenant shall not use or permit the use of any vending machines or public telephones on, at, or about the Premises without the prior written consent of Landlord. Tenant shall not commit waste, perform any acts or carry on any practices which may injure the Shopping Center or be a nuisance or menace to other tenants in the Shopping Center. Tenant shall operate its business in a dignified manner and in accordance with high standards of store operation so as to maintain a character in keeping with the rest of the Shopping Center, and so as to maximize Tenant's gross sales and shall, at all times when the Premises are open for business with the public, keep the Premises properly equipped with fixtures, stocked with an adequate supply of merchandise and attended by adequate personnel. In the use and occupancy of the Premises and with respect to conditions created at Tenant's request, or as a result of Tenant's performance or breach of any of its obligations hereunder or any fault of Tenant, Tenant shall, at Tenant's expense, comply with all laws and ordinances and all valid rules and regulations and all directives, orders and citations of federal, state, county and municipal authorities having jurisdiction over the Premises, including without limitation the Americans with Disabilities Act and all requirements of any insurance company and any public or private agency having authority over insurance rates. 4. Rent. The Tenant agrees to pay Rent and Additional Rent to Landlord per the schedule shown in Article 6 and 12 of the Basic Lease Provisions, supra. Rent is due on the fast day of each month. The first payment of Base Rent, Additional Rent, and Security Deposit are due upon the signing of the Lease by the Tenant. The Tenant must pay a late charge of ten percent as additional rent for each payment that is more than 10 days late. This late charge is due with the monthly rent payment. The Tenant must also pay a fee of $50.00 as additional rent for any dishonored check. 5. Late Charge. Other remedies for non-payment of Rent notwithstanding, if any monthly installment of Rent or percentage rent or Additional Rent is nbt received by Landlord on or before the date due, or if any payment due Landlord by Tenant which does not have a scheduled due date is not received by Landlord on or before the tenth (10th) day following the date Tenant's rent was due therefore, a late charge of ten percent (10%) of such past due amount shall be immediately due and payable as Additional Rent hereunder and interest shall accrue on all delinquent amounts from the date past due until paid at the lower of a rate of one and one-half percent (1-1/2%) per month or fraction thereof from the date such payment is due until paid (Annual Percentage Rate = 18%), or the highest rate permitted by applicable law. 6. Partial Payment. No payment by Tenant or acceptance by Landlord of an amount less than the Rent herein stipulated shall be deemed a waiver of any other Rent due. No partial payment or endorsement on any check or any letter accompanying such payment of Rent shall be deemed an accord and satisfaction, but Landlord may accept such payment without prejudice to Landlord's right to collect the balance of any Rent due under the terms of this Lease or any late charge assessed against Tenant hereunder. 7. Repairs/Alterations.The Tenant has examined the Leased Premises and has entered into this Lease without any representation on the part of the Landlord as to the condition thereof. (a) Repairs By Landlord. Landlord shall keep the foundation, the roof and the exterior walls of the Premises (except plate glass, doors, door closures, door frames, store fronts, windows and window frames located in exterior building walls) in good repair, and Tenant shall pay, as additional rent, the cost of any such repairs occasioned by the act or neglect of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, and the cost to repair any damage caused by or as a result of Tenant's occupancy of Premises, or any damage caused by break-in, burglary, or other similar acts in or to the Premises, within ten (10) days after demand for payment by Landlord. In the event that the Premises should become in need of repairs required to be made by Landlord hereunder, Tenant shall give immediate written notice thereof to Landlord, and Landlord shall not be responsible in any way for failure to make any such repairs until a reasonable time shall have elapsed after the giving of such written notice. Landlord may elect by giving notice thereof to Tenant, to require Tenant within a reasonable time and at Tenant's expense, to make any repairs that Landlord is required to make at Tenant's expense under this Section, and in such event Tenant shall not be required to pay the cost thereof to Landlord as additional rent. (b) Repairs By Tenant. Tenant shall, at its sole cost and expense, keep the Premises in a safe, sightly, and serviceable condition; Tenant shall at its sole cost and expense supply a dumpster for Tenants Trash ; Tenant shall keep the premises free from any infestation by insects, rodents, or other pests, and, except as provided in this Section , make all needed maintenance, repairs, and replacements for the proper operation of Tenant's business within the Premises, including all maintenance, repairs, and replacements to: (i) the heating, ventilating, and air conditioning systems serving the Premises; (ii) the 4 exterior and interior portion of all doors, windows, window frames, plate glass, door closures, door frames and store fronts including exterior signage; (iii) all plumbing and sewage facilities within the Premises, including free flow up to the connection to the main sewer line, grease traps, sprinkler systems; (iv) all fixtures within the Premises; (v) all electrical systems serving the Premises (whether or not located within the Premises); (vi) all sprinkler systems serving the Premises; (vii) all interior walls, floors, and ceilings; (viii) any of the Tenant's Work; (ix) all repairs, replacements, or alterations required by any governmental authority; and (x) all necessary repairs and replacements of Tenant's trade fixtures required for the proper conduct and operation of Tenant's business. If at any time and from time to time during the Term, and any extensions and renewals thereof, Tenant shall fail to make any maintenance, repairs, or replacements in and to the Premises as required in this Lease, Landlord shall have the right, but not the obligation, to enter the Premises and to make such maintenance, repairs, and replacements for and on behalf of Tenant, and all sums expended by Landlord for such maintenance, repairs, and replacements shall be deemed to be additional rent hereunder and shall be payable to Landlord upon demand. At the termination of this Lease, Tenant shall surrender the Premises in good condition, reasonable wear and tear and loss by fire or other casualty alone excepted. Tenant shall keep in force a standard maintenance agreement on all heating, ventilating, and air conditioning systems serving the Premises with a reputable heating and air conditioning service organization which shall be subject to Landlord's approval and shall provide a copy of said maintenance agreement to Landlord for its approval. 8. Compliance with Laws etc. The Tenant shall promptly comply with all laws, ordinances, rules, regulations, requirements and directives of the Federal, State and Municipal Governments or Public Authorities and of all their departments, bureaus and subdivisions, applicable to and affecting the said premises, their use and occupancy, (including, without limitation, the Americans with Disabilities Act) for the correction, prevention and abatement of nuisances, violations or other grievances in, upon or connected with the said premises, during the term hereof, and shall promptly comply with all orders, regulations, requirements and directives of the Board of Fire Underwriters or similar authority and of any insurance companies which have issued or are about to issue policies of insurance covering the said premises and its contents, for the prevention of fire or other casualty, damage or injury, at the Tenant's own cost and expense. 9. Assignment. The Tenant shall not assign, mortgage or hypothecate this Lease, nor sublet or sublease the Leased Premises or any part thereof, nor occupy or use the Leased Premises or any part thereof, nor permit or suffer the same to be occupied or used for any purposes other than as herein limited, nor for any purpose deemed unlawful, disreputable, or extra hazardous, on account of fire or other casualty. 10. Destruction or Damage by Casualty. (a) Tenant shall give immediate written notice to Landlord of any damage to the Premises caused by fire or other casualty, and if Landlord does not elect to terminate this Lease as hereinafter provided, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Premises. Notwithstanding the foregoing, in the event that: (i) the insurance proceeds payable in connection with such damage and destruction shall be insufficient to make such restoration; (ii) the building in which the Premises are located shall be destroyed or substantially damaged by casualty not covered by standard fire or extended coverage insurance; (iii) such building shall be destroyed or rendered untenantable by any casualty to the extent of at least fifty percent (50%) of the Rentable Area of such building; (iv) Landlord shall not have actual and unconditional receipt of the insurance proceeds payable in connection with such damage and destruction; (v) the holder of any mortgage, deed to secure debt, deed of trust, or other instrument in the nature thereof which encumbers Landlord's interest hereunder or in the Premises shall require that such proceeds shall be applied against any indebtedness owed to such holder; or (vi) there shall be less than two (2) years 5 remaining in the Term, or any extension or renewal thereof, then, in any of such events, Landlord may elect either to terminate this Lease or to proceed to rebuild and repair the Premises. Landlord shall give written notice to Tenant of such election within ninety (90) days after the occurrence of such casualty. (b) Landlord's obligation to rebuild and repair the Premises under this Section shall in any event be limited to restoring Landlord's work to substantially the condition in which the same existed prior to the casualty, and Tenant agrees that promptly after the completion of such work by Landlord, Tenant will proceed with reasonable diligence and at Tenant's sole cost and expense to restore Tenant's work and all alterations, additions and improvements done by Tenant within the Premises to substantially the condition in which the same existed prior to the casualty. (c) Tenant agrees that during any period of reconstruction or repair of the Premises, it will continue the operation of its business within the Premises to the extent practicable. During the period from the occurrence of a casualty until Landlord's repairs are completed, the Minimum Rent (but not Percentage Rent) shall be reduced and abated in proportion to the amount of Rentable Area of the Premises which is rendered untenantable as a result of such casualty; provided, however, that if such damage or destruction is caused by the intentional or negligent acts or omissions of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, then, and in that event, the Minimum Rent shall not abate. Tenant shall not be entitled to and hereby waives, releases, and relinquishes any and all claims against Landlord for any compensation or damage for loss of use of all or any part of the premises or for any inconvenience or annoyance occasioned by any such damage, destruction, repair, or restoration of the Premises. (d) Tenant agrees at all times at its expense to keep its merchandise, fixtures, Tenant's Work, all alterations, additions and improvements done by Tenant within the Premises and Tenant's other property situated within its Premises insured by "All Risk" insurance in an amount equal to its full replacement value. Such insurance shall be carried with companies reasonably satisfactory to Landlord. Such insurance shall be non-cancelable and non-amendable except after ten (10) days written notice to Landlord. Such policies or duly executed certificates of insurance with respect thereto shall be delivered to Landlord, together with evidence of payment of the premium therefore, prior to the Rent Commencement Date and renewals thereof as required shall be delivered to Landlord at least thirty (30) days prior to the expiration of the respective policy terms. The proceeds of such insurance shall be payable to Landlord and Tenant, jointly, for use by Tenant only, except with the consent of Landlord, for the repair or replacement of merchandise, fixtures, Tenant's Work, or other property which was situated within the Premises. (e) In the event that fifty percent (50%) or more of the Rentable Area of the Shopping Center shall be destroyed or substantially damaged by any casualty, notwithstanding that the Premises may be unaffected by such casualty, Landlord may terminate this Lease by giving the Tenant thirty (30) days prior written notice of Landlord's election to do so, which notice shall be given, if at all, within ninety (90) days following the date of such occurrence. Rent shall be adjusted as of the date of such termination. 11. Damage or Theft of Personal Property. All personal property brought into the Premises shall be at the risk of the Tenant only and Landlord shall not be liable for theft thereof or any damage thereto occasioned by any acts of co-tenants, or other occupants of the Building, or any other person, except, with respect to damage to the Premises, as may be occasioned by the grossly negligent or willful act of the Landlord, its employees and agents. 12. "As Is" The Tenant has inspected the Leased Premises and agrees that the Leased Premises is in satisfactory condition. The Tenant accepts the Leased Premises "as is" Notwithstanding the above, Landlord shall erect, at it's own expense a demising wall between suites 18 & 19 which will be delivered in paint ready condition. The Landlord shall also, at its own expense, remove the middle wall/partition located in the Leased Premises. 13. Alterations and/or Improvements. No alterations, additions or improvements shall be made, and no climate regulating, air conditioning, cooling, heating or sprinkler systems, television or radio antennas, heavy equipment, apparatus and fixtures, shall be installed in or attached to the Leased Premises, without the written consent of the Landlord. Unless otherwise provided herein, all such alterations, additions or improvements and systems, when made, installed in or attached to the said premises, shall belong to and become the property of the Landlord and shall be surrendered with the Leased Premises and as part thereof upon the expiration or sooner termination of this lease, without hindrance, molestation or injury. If Landlord gives its written consent to any such alterations, additions or improvements and systems, all work and improvements shall be performed by Tenant in accordance with applicable local, state and federal laws, including obtaining permits and a certificate of occupancy for the work and improvements. 14. Inspection and Repair. The Tenant agrees that the Landlord and the Landlord's agents, employees or other representatives, shall have the right to enter into and upon the said premises or any part thereof, at all reasonable hours, for the purpose of examining the same or making such repairs or alterations therein as may be necessary for the safety and preservation thereof. This clause shall not be deemed to be a covenant by the Landlord nor be construed to create an obligation on the part of the Landlord to make such inspection or repairs. 15. Right to Exhibit. The Tenant agrees to permit the Landlord and the Landlord's agents, employees or other representatives to show the Leased Premises to persons wishing to rent or purchase the same, and Tenant agrees that on and after 180 days next preceding the expiration of the term hereof, the Landlord or the Landlord's agents, employees or other representatives shall have the right to place notices on the front of said premises or any part thereof, offering the Leased Premises for rent or for sale; and the Tenant hereby agrees to permit the same to remain thereon without hindrance or molestation. 16. Glass, etc. Damage, Repairs. In case of the destruction of or any damage to the glass in the Leased Premises, or the destruction of or damage of any kind whatsoever to the said premises, caused by the carelessness, negligence or improper conduct on the part of the Tenant or the Tenant's agents, employees, guests, licensees, invitees, subtenants, assignees or successors, the Tenant shall repair the said damage or replace or restore any destroyed parts of the Leased premises, as speedily as possible, at the Tenant's own cost and expense. 17. Signs. The Tenant shall not place nor allow to be placed any signs of any kind whatsoever, upon, in or about the said premises or any part thereof, except of a design and structure and in or at such plaices as may be indicated and consented to by the Landlord in writing. In case the Landlord or the Landlord's agents, employees or representatives shall deem it necessary to remove any such signs in order to paint or make any repairs, alterations or improvements in or upon said premises or any part thereof, they may be so removed, but shall be replaced at the Landlord's expense when the said repairs, alterations or improvements shall have been completed. Any signs permitted by the Landlord shall at all times conform with all municipal ordinances or other laws and regulations applicable thereto. 18. Non-Lability of Landlord. The Landlord shall not be liable for any damages or injury which may be sustained by the Tenant or any other person, as a consequence of the failure, breakage, leakage or obstruction of the water, plumbing, steam, sewer, waste or soil pipes, roof, drains, leaders, gutters, valleys, down-spouts or the like or of the electrical, gas, power, conveyor, refrigeration, sprinkler, air-conditioning or heating systems, elevators or hoisting equipment; or by reason of the elements; or resulting from the carelessness, negligence or improper conduct on the part of any other Tenant or this or any other Tenant's agents, employees, guests, licensees, invitees, subtenants, assignees or successors; or attributable to any interference with, interruption of or failure, beyond the control of the Landlord, of any services to be famished or supplied by the Landlord. 19. Mortgage Priority. (a) Tenant agrees that this Lease shall be subject and subordinate: (i) to any mortgage, deed of trust or other security interest now encumbering the Shopping Center and to all advances which may be hereafter made, to the full extent of all debts and charges secured thereby and to all renewals or extensions of any part thereof, and to any mortgage, deed of trust or other security interest which any owner of the Shopping Center may hereafter, at any time, elect to place on the Shopping Center; (ii) to any assignment of Landlord's interest in the leases and rents from the Shopping Center which includes the Lease which now exists or which any owner of the Shopping Center may hereafter, at any time, elect to place on the Shopping Center; and (iii) to any Uniform Commercial Code Financing Statement covering the personal property rights of Landlord or any owner of the Shopping Center which now exists or any owner of the Shopping Center may hereafter, at any time, elect to place on the foregoing personal property (all of the foregoing instruments set forth in (i), (ii) and (iii) above being hereafter collectively referred to as "Security Documents"). Tenant agrees upon request of the holder of any Security Documents ("Holder") to hereafter execute any documents which the counsel for Landlord or Holder may reasonably deem necessary to evidence the subordination of the Lease to the Security Documents. Within ten (10) days after request therefore, if Tenant fails to execute any such requested documents, Landlord or Holder is hereby empowered to execute such documents in the name of Tenant evidencing such subordination, as the act and deed of Tenant, and this authority is hereby declared to be coupled with an interest and not revocable. (b) In the event of a foreclosure pursuant to any Security Documents, Tenant shall at the election of the Landlord, thereafter remain bound pursuant to the terms of this Lease as if a new and identical Lease between the purchaser at such foreclosure ('Purchaser"), as landlord, and Tenant, as tenant, had been entered into for the remainder of the Term hereof and Tenant shall attorn to the Purchaser upon such foreclosure sale and shall recognize such Purchaser as the Landlord under the Lease. Such attomment shall be effective and self-operative without the execution of any further instrument on the part of any of the parties hereto. Tenant agrees, however, to execute and deliver at any time and from time to time, upon the request of Landlord or of Holder, any instrument or certificate that may be necessary or appropriate in any such foreclosure proceeding or otherwise to evidence such attomment. (c) If the Holder of any Security Document or the Purchaser upon the foreclosure of any of the Security Documents shall succeed to the interest of Landlord under the Lease, such Holder or Purchaser shall have the same remedies, by entry, action or otherwise for the non-performance of any agreement contained in the Lease, for the recovery of Rent or for any other default or event of default hereunder that Landlord had or would have had if any such Holder or Purchaser had not succeeded to the interest of Landlord. Any such Holder or Purchaser which succeeds to the interest of Landlord hereunder, shall not be: (a) liable for any act or omission of any prior Landlord (including Landlord) unless such act or omission is of a continuing nature; or (b) subject to any offsets or defenses which Tenant might have against any prior Landlord (including Landlord); or (c) bound by any Rent which Tenant might have paid for more than the current month to any prior Landlord (including Landlord); or (d) bound by any amendment or modification of the Lease made without its consent. (d) Notwithstanding anything to the contrary set forth in this Section, the Holder of any Security Documents shall have the right, at any time, to elect to make this Lease superior and prior to its Security Document. No documentation, other than written notice to Tenant, shall be required to evidence that the Lease has been made superior and prior to such Security Documents, but Tenant hereby agrees to execute any documents reasonably requested by Landlord or Holder to acknowledge that the Lease has been made superior and prior to the Security Documents. 20. Security. The Tenant has this day deposited with the Landlord the sum as shown in Article 14 of the Basic Lease Provisions as security for the payment of the rent hereunder and the full and faithful performance by the Tenant of the covenants and conditions on the part of the Tenant to be performed. Said sum shall be returned to the Tenant, without interest, after the expiration of the term hereof, provided that the Tenant has fully and faithfully performed all such covenants and conditions and is not in arrears in rent. During the term hereof, the Landlord may, if the Landlord so elects, have recourse to such security, to make good any default by the Tenant, in which event the Tenant shall, on demand, promptly restore said security to its original amount. Liability to repay said security to the Tenant shall run with the reversion and title to said premises, whether any change in ownership thereof be by voluntary alienation or as the result of judicial sale, foreclosure or other proceedings, or the exercise of a right of taking or entry by any mortgagee. The Landlord shall assign or transfer said security, for the benefit of the Tenant, to any subsequent owner or holder of the reversion or title to said premises, in which case the assignee shall become liable for the repayment thereof as herein provided, and the assignor shall be deemed to be released by the Tenant from all liability to return such security. This provision shall be applicable to every alienation or change in title and shall in no wise be deemed to permit the Landlord to retain the security after termination of the Landlord's ownership of the reversion or title. The Tenant shall not mortgage, encumber or assign said security without the written consent of the Landlord. 21. Increase of Insurance Rates. If for any reason it shall be impossible to obtain fire and other hazard insurance on the buildings and improvements on the Leased Premises, at standard rates and in the form and in insurance companies reasonably acceptable to the Landlord, the Landlord may, if the Landlord so elects at any tirne thereafter, terminate this lease and the term hereof, upon giving to the Tenant fifteen days notice in writing of the Landlord's intention so to do, and upon the giving of such notice, this lease and the term thereof shall terminate. If by any reason of the use to which the Leased Premises are. put by the Tenant or character of or the manner in which the Tenant's business is carried on, the insurance rates for fire and other hazards shall be increased, the Tenant shall upon demand, pay to the Landlord, as rent, the amounts by which the premiums for such insurance are increased. Such payment shall be paid with the next installment of rent but in no case later than one month after such demand, whichever occurs sooner. 22» Utilities. The Tenant shall pay when due all the rents or charges for water, sewer, gas and electricity used by the Tenant, which are or may be assessed or imposed upon the Leased Premises or which are or may be charged to the Landlord by the suppliers thereof during the term hereof, and if not paid, such rents or charges shall be added to and become payable as additional rent with the installment of rent next due or within 30 days of demand therefor, whichever occurs sooner. Tenant shall contract Directly with the electrical and gas supplier for these utililities. Tenant shall arrange and pay for all utilities and services required in the Leased Premises, including but not limited to, (a) electric, (b) heat, (c) gas, (d) water and (e) sewer services. Landlord shall not be responsible for interruption or impairment of service or utility. 23. Condemnation & Eminent Domain. If the land and premises leased herein, or of which the Leased Premises are a part, or any portion thereof, shall be taken under eminent domain or condemnation proceedings, or if suit or other action shall be instituted for the taking or condemnation thereof, or if in lieu of any formal condemnation proceedings or actions, the Landlord shall grant an option to purchase and or shall sell and convey the said premises or any portion thereof, to the govemmental or other public authority, agency, body or public utility, seeking to take said land and Leased Premises or any portion thereof, then this lease, at the option of the Landlord, shall terminate, and the term hereof shall end as of such date as the Landlord shall fix by notice in writing; and the Tenant shall have no claim or right to claim or be entitled to any portion of any amount which may be awarded as damages or paid as the result of such condemnation proceedings or paid as the purchase price for such option, sale or conveyance in lieu of formal condemnation proceedings; and all rights of the Tenant to damages, if any, are hereby assigned to the Landlord. The Tenant agrees to execute and deliver any instruments, at the expense of the Landlord, as may be deemed necessary or required to expedite any condemnation proceedings or to effectuate a proper transfer of title to such govemmental or other public authority, agency, body or public utility seeking to take or acquire the said lands and Leased Premises or any portion thereof. The Tenant covenants and agrees to vacate the said premises, remove all the Tenant's personal property therefrom and deliver up peaceable possession thereof to the Landlord or to such other party designated by the Landlord in the aforementioned notice. Failure by the Tenant to comply with any provisions in this clause shall subject the Tenant to such costs, expenses, damages and losses as the Landlord may incur by reason of the Tenant's breach hereof. 24. Abandonment of Premises. Tenant agrees not to abandon or vacate the Premises during the Term of this Lease. If Tenant does abandon or vacate the Premises for more than ninety (90) days, Landlord may terminate this Lease, by written notice to Tenant at any time prior to Tenant reoccupying the Premises, but such termination shall not entitle Landlord to pursue any other remedies unless an uncured Default then exists, in which case Landlord may pursue any and all remedies provided by this Lease, at law or in equity. 25. Default. If Tenant shall default in the payment of Rent, Additional Rent, Percentage Rent or any Sum due; herein reserved when due and fails to cure such default within ten (10) days after written notice of such default is given to Tenant by Landlord; or if Tenant shall be in default in performing any of the terms or provisions of this Lease other than the provisions requiring the payment of Rent, and fails to cure such non-monetary default within thirty (30) days after written notice of such default is given to Tenant by Landlord, provided however that if such non-monetary default is of such a nature that it cannot through the exercise of diligent and reasonable efforts be cured within thirty (30) days, then Tenant shall not be in default in such instance if Tenant promptly commences and diligently pursues the cure of such non-monetary default to completion as soon as possible and in all events within ninety (90) days after such initial notice; or if Tenant is adjudicated a bankrupt; or if a permanent receiver is appointed for 'T'enant's property and such receiver is not removed within sixty (60) days after appointment thereof; or if, whether voluntarily or involuntarily, Tenant takes advantage of any debtor relief proceedings under any present or future laws, whereby the Rent or any part thereof, is, or is proposed to be, reduced or payment thereof deferred; or if Tenant's effects should be levied upon or attached and such levy or attachment is not satisfied or dissolved within thirty (30) days after such levy or attachment; or, if Tenant is an individual, in the event of the death of the individual and the failure of the executor, administrator or personal representative of the estate of the deceased individual to have assigned the Lease within three (3) months after such death to an assignee approved by Landlord; then, and in any of such events, Landlord, at its option, may exercise any or all of the remedies set forth in this Lease. 10 26. Remedies Upon Tenant's Default If there should occur any default on the part of the Tenant in the performance of any conditions and covenants herein contained, or if during the term hereof the Leased Premises or any part thereof shall be or become abandoned or deserted, vacated or vacant, or should the Tenant be evicted by summary proceedings or otherwise, the Landlord, in addition to any other remedies herein contained or as may be permitted by law, may either by force or otherwise, without being liable for prosecution therefor, or for damages, re-enter the said premises and the same have and again possess and enjoy; and as agent for the Tenant or otherwise, re-let the Leased Premises and receive the rents therefor and apply the same, first to the payment of such expenses, reasonable attorney fees and costs, as the Landlord may have been put to in re-entering and repossessing the same and in making such repairs and alterations as may be necessary; and second to the payment of the rents due hereunder. The Tenant shall remain liable for such rents as may be in arrears and also the rents as may accrue subsequent to the re-entry by the Landlord, to the extent of the difference between the rents reserved hereunder and the rents, if any, received by the Landlord during the remainder of the unexpired term hereof, after deducting the aforementioned expenses, fees and costs; the same to be paid as such deficiencies arise and are ascertained each month. 27. Ternunation on Default. Upon the occurrence of any of the contingencies set forth in the preceding clause, or should the Tenant be adjudicated as bankrupt, insolvent or placed in receivership, or should proceedings be instituted by or against the Tenant for bankruptcy, insolvency, receivership, agreement or composition or assignment for the benefit of creditors, or if this lease or the estate of the Tenant hereunder shall pass to another by virtue of any court proceedings, writ of execution, levy, sale, or by operation of law, the Landlord may, if the Landlord so elects, at any time thereafter, terminate this lease and the term hereof, upon giving to the Tenant or to any trustee, receiver, assignee or other person in charge of or acting as custodian of the assets or property of the Tenant, five days notice in writing, of the Landlord's intention so to do. Upon the giving of such notice, this lease and the term hereof shall end on the date fixed in such notice as if the said date was the date originally fixed in this lease for the expiration hereof, and the Landlord shall have the right to remove all persons, goods, fixtures and chattels therefrom, by force or otherwise, without liability for damages. 28. Removal of Tenant's Property. Any equipment, fixtures, goods or other property of the Tenant, not removed by the Tenant upon the termination of this lease, or upon any quitting, vacating or abandonment of the Leased Premises by the Tenant, or upon the Tenant's eviction, shall be considered as abandoned and the Landlord shall have the right, without any notice to the Tenant, to sell or otherwise dispose of the same, at the expense of the Tenant, and shall not be accountable to the Tenant for any part of the proceeds of such sale, if any. 29. Reimbursement of Landlord. If the Tenant shall fail or refuse to comply with and perform any conditions and covenants of the within lease, the Landlord may, if the Landlord so elects, carry out and perform such conditions and covenants, at the cost and expense of the Tenant, and the said cost and expense shall be payable on demand, or at the option of the Landlord shall be added to the installment of rent due immediately thereafter but in no case later than one month after such demand, whichever occurs sooner, and shall be due and payable as such. This remedy shall be in addition to such other remedies as the Landlord may have hereunder by reason of the breach by the Tenant of any of the covenants and conditions in this lease contained 30. Non-Performance by Landlord. This lease and the obligation of the Tenant to pay the rent hereunder and to comply with the covenants and conditions hereof, shall not be affected, curtailed, impaired or excused because of the Landlord's inability to supply any service or material called for herein, by reason of any rule, order, regulation or preemption by any governmental entity, authority, department, agency or subdivision or for any delay which may arise by reason of negotiations for the adjustment of any fire or other casualty loss or because of strikes or other labor trouble or for any cause beyond the control of the Landlord. 11 31. Validity of Lease.The terms, conditions, covenants and provisions of this lease shall be deemed to be severable. If any clause or provision herein contained shall be adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it shall not affect the validity of any other clause or provision herein, but such other clauses or provision shall remain in full force and effect. 32. Non-Waiver by Landlord. The various rights, remedies, options and elections of the Landlord, expressed herein, are cumulative, and the failure of the Landlord to enforce strict performance by the Tenant of the conditions and covenants of this lease or to exercise any election or option or to resort or have recourse to any remedy herein conferred or the acceptance by the Landlord of any installment of rent after any breach by the Tenant, in any one or more instances, shall not be construed or deemed to be a waiver or a relinquishment for the future by the Landlord of any such conditions and covenants, options, elections or remedies, but he same shall continue in full force and effect. 33. Notices. All notices required under the terms of this lease shall be given and shall be complete by mailing such notices by certified or registered mail, return receipt requested, to the address of the parties as shown at the head of this lease, or to such other address as may be designated in writing, which notice of change of address shall be given in the same manner. 34. Title and Quiet Enjoyment. The Landlord covenants and represents that the Landlord is the owner of the Leased Premises herein leased and has the right and authority to enter into, execute and deliver this lease; and does further covenant that the Tenant on paying the rent and performing the conditions and covenants herein contained, shall and may peaceably and quietly have, hold and enjoy the Leased Premises for the term aforementioned. Landlord shall not be responsible for the acts or omissions of any other tenant or third party that may interfere with Tenant's use and enjoyment of the Premises. 35. Force Majeure. In the event of a strike, lockout, labor trouble, civil commotion, an act of God, or any other event beyond Landlord's control (a "force majeure event") which results in the Landlord being unable to timely perform its obligations hereunder to repair the Premises, provide services, or complete Work (as provided in Exhibit "B"), so long as Landlord diligently proceeds to perform such obligations after the end of such force majeure event, Landlord shall not be in breach hereunder, this Lease shall not terminate, and Tenant's obligation to pay any Minimum Rent, additional rent, or any other charges and sums due and payable shall not be excused. 36. Entire Contract.This lease contains the entire contract between the parties. No representative, agent or employee of the Landlord has been authorized to make any representations or promises with reference to the within letting or to vary, alter or modify the terms hereof. No additions, changes or modifications, renewals or extensions hereof, shall be binding unless reduced to writing and signed by the Landlord and the Tenant. 37. Conformity with Laws and Regulations. T he Landlord may pursue the relief or remedy sought in any invalid clause, by conforming the said clause with the provisions of the statutes or the regulations of any governmental agency in such case made and provided as if the particular provisions of the applicable statutes or regulations were set forth herein at length. A Number and Gender. In all references herein to any parties, persons, entities or corporations the use of any particular gender or the plural or singular number is intended to include the appropriate gender or number as the text of the within instrument may require. All the temis, covenants and conditions herein contained shall be for and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs, executors, administrators, personal or legal representatives, successors and assigns. 12 39. Brokers. Tenant warrants that it has had no dealings with any real estate broker or agents other than The Pintzuk Brown Realty Group and Campbell Commercial Real Estate in connection with the negotiation of this Lease, and it knows of no real estate broker or agent who is entitled to a commission in connection with this Lease. Tenant shall indemnify and defend Landlord against any costs, claims and expenses, including reasonable attorneys' fees, arising out of Tenant's breach of any representa- tion or agreement contained in this paragraph. 40. Additional Rent. Tenant agrees to pay as further additional rent, as hereinafter provided, Tenant's Share of expenses incurred by Landlord at its discretion for the operation, management and maintenance of the Common Areas of the Shopping Center as constituted from time to time (hereinafter called the "Common Area Expenses"). As used herein, the term Common Areas shall mean those areas of the Shopping Center, including all parking areas, which are from time to time open for joint use by the tenants of Shopping Center or by the public, including driveways, truckways, delivery passages, walkways, concourses, malls, planted areas, landscaped areas, and public restrooms and common truck loading and receiving areas which are not leased to or reserved for individual tenants. Common Area Expenses shall include without limitation management fees paid to a management company, expenses reimbursable to a management company, costs incurred for lighting, heating, air conditioning, painting, cleaning, removal of trash, garbage, debris and other refuse, central trash disposal (if Landlord elects to provide same), traffic control, fire protection, sewer, or septic system, compliance with governmental and other regulatory authority applicable to the Shopping Center, policing, inspecting, landscaping and repairing and replacing the Common Areas, or any part thereof, Landlord's share of costs incurred in the maintenance and repair of any offsite retention/detention facilities serving the Shopping Center and any offsite accessways burdened by an easement benefiting the Shopping Center, depreciation of maintenance equipment, costs of all insurance, including any hazard, public liability and property damage insurance, and business interruption or rent insurance, as Landlord shall reasonably deem appropriate with respect to the Shopping Center, including appraisals and consultants' fees and premiums in connection with such insurance and deductible amounts paid in connection with any insurance claim, costs of all water consumed in the Shopping Center which is not separately metered to tenants (single or multiple), and an administrative fee of fifteen percent (15%) of the foregoing costs, but excluding depreciation of Landlord's original investment in the Shopping Center. All capital expenditures included in operating costs (including, but not limited to, the replacement of the roof and resurfacing the parking areas) shall be treated as if said expenditures have been capitalized over their useful life, and Tenant's Share shall in no event include the cost of initial construction or expansion of the Shopping Center and the common areas. Tenant's Share to be paid by Tenant with respect to Common Area Expenses shall be that percentage of the cost of operation and maintenance of the Common Areas which the Rentable Area of the Premises bears to the Rentable Area of the Shopping Center, unless the Shopping Center or any facility serving the Shopping Center is operated, managed or maintained in common with other property or serves additional property, in which event Tenant's Share may be that percentage of a common cost which the Rentable Area of the Premises bears to the Rentable Area of the property under common operation, management, maintenance or served by the facility. Landlord may at its option make monthly or other periodic charges based upon the estimated annual cost of operation and maintenance of the Common Areas, payable in advance but subject to adjustment after the end of each calendar year on the basis of the actual costs for such year. Within ninety (90) days after the close of each calendar year, upon written request from Tenant, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting 13 practices and to include Tenant's proportionate share of the expenses relating to the Common Areas computed as herein provided. Tenant shall be liable for and shall pay all taxes levied against personal property, fixtures, and Tenant's Work in the Premises as additional rent; if such taxes for which Tenant is liable are levied against Landlord or Landlord's property and if Landlord elects to pay the same or if the assessed value of Landlord's property is increased by inclusion of any such items and Landlord elects to pay the taxes based on such increase, Tenant shall pay to Landlord upon demand, as additional rent, that part of such taxes for which Tenant is liable hereunder. Tenant further agrees to pay as additional rent, Tenant's Share of the general real estate taxes, tax consultant fees, assessments, and governmental charges levied against Shopping Center for each calendar year beginning with the Rent Commencement Date and during the Lease Term and any renewals or extensions thereof, together with Tenant's Share of the reasonable cost of any contest of such taxes, assessments and charges or the assessed valuation of the Shopping Center that Landlord may pursue in its reasonable discretion, including fees and disbursements of attorneys, tax consultants, arbitrators, appraisers, experts and other witnesses (hereinafter called the "Taxes"). The Taxes shall be appropriately prorated during the first and last years of the Lease Term if such years are less than full calendar years. "Tenant's Share" shall be that percentage which the Rentable Area of the Premises bears to the Rentable Area of the Shopping Center. Landlord may at its option make monthly or other periodic charges based upon the estimated annual taxes, payable in advance but subject to adjustment after receipt of the tax statement by Landlord. Tenant agrees to pay as additional rent any rent tax or other tax imposed upon rent payments or imposed upon Landlord based upon rent payments by Tenant to Landlord, however Tenant shall not be required to pay any income tax of Landlord. In the event that a merchants association is formed for the Shopping Center, Tenant agrees that it will join and maintain membership in such association. The objectives of such association shall be to advance the civic, social, commercial and economic welfare of its members and the general interest of the' Shopping Center and its trade area. Tenant will pay such dues and assessments as may be fixed and determined from time to time by such association. Tenant shall also comply with such other by-laws, rules, and regulations as may be adopted from time to time by such association, and shall take such actions as may be necessary to remain in good standing in such association and shall cooperate in all of the activities of such association. 41. Insurance. (a) Tenant shall keep in force throughout the Term: (a) a Commercial General Liability insurance policy or policies to protect Landlord against any liability to the public or to any invitee of Tenant incidental to the use of or resulting from any accident occurring in or upon the Leased Premises with a limit of not less than $1,000,000.00 per occurrence and not less than $2,000,000.00 in the annual aggregate, or such larger amount as Landlord may prudently require from time to time, covering bodily injury and property damage liability and $1,000,000.00 products/completed operations aggregate; (b) Business Auto Liability covering owned, non-owned and hired vehicles with a limit of not less than $1,000,000.00 per accident; (c) insurance protecting against liability under Worker's Compensation Laws with limits at least as required by statute; (d) Employers Liability with limits of $500,000.00 each accident, $500,000.00 disease policy limit, $500,000.00 disease - each employee; (e) All Risk or Special Form coverage protecting Tenant against loss of or damage to Tenant's alterations, additions, 14 improvements, carpeting, floor coverings, panelings, decorations, fixtures, inventory and other business personal property situated in or about the Leased Premises to the full replacement value of the property so insured; and, (f) Business Interruption Insurance with limit of liability representing loss of at least approximately six months of income. (b) Each of the aforesaid policies shall (i) be provided at Tenant's expense; (ii) name the Landlord and Landlord's mortgagee as additional insureds; (iii) be issued by an insurance company with a minimum Best's rating of "A+"; (iv) be with companies authorized to do business in the state where the property is located and (v) provide that said insurance shall not be cancelled unless thirty (30) days prior written notice (ten days for non-payment of premium) shall have been given to Landlord, and said policy or policies or certificates thereof, together with proof of payment, shall be delivered to Landlord by Tenant not less than fifteen (15) days prior to the commencement of the term hereof or the date when Tenant shall enter into possession, whichever is sooner and at least thirty (30) days prior to each renewal of said insurance. (c) So long as their respective insurers so permit, Tenant and Landlord hereby mutually waive their respective rights of recovery against each other for any loss insured by fire, extended coverage, All Risks or other insurance now or hereafter existing for the benefit of the respective party but only to the extent of the net insurance proceeds payable under such policies. Each party shall obtain any special endorsements required by their insurer to evidence compliance with the aforementioned waiver. 42. Indemnification. Landlord shall not be liable and Tenant hereby waives all claims against Landlord for any damage to any property or any injury to any person in or about the Leased Premises or the Shopping Center by or from any cause whatsoever, except to the extent caused by or arising from the gross negligence or willful misconduct of Landlord or its agents, employees or contractors. Tenant shall protect, indemnify and hold the Landlord entities harmless from and against any and all loss, claims, liability or costs (including court costs and attorney's fees) incurred by reason of (a) any damage to any property or any injury to any person occurring in, on or about the Leased Premises or the Shopping Center to the extent that such injury or damage shall be caused by or arise from any actual or alleged act, neglect, fault, or omission by or of Tenant, its agents, servants, employees, invitees, or visitors to meet any standards imposed by any duty with respect to the injury or damage; (b) the conduct or management of any work or thing whatsoever done by the Tenant in or about the Leased Premises or from transactions of the Tenant concerning the Leased Premises; (c) Tenant's failure to comply with any and all governmental laws, ordinances and regulations applicable to the condition or use of the Leased Premises or its occupancy; (d) any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of the Tenant to be performed pursuant to this Lease, or (e) or for any cause or reason whatsoever arising out of or by reason of the occupancy or business of Tenant. The provisions of this Article shall survive the termination of this Lease with respect to any claim or liability accruing prior to such termination. 43. Construction and Acceptance of Premises. (a) Landlord agrees that Landlord will complete Landlord's Work as defined in Exhibit "B", with such minor variations as Landlord may deem advisable. Tenant acknowledges that neither Landlord nor any of Landlord's agents, employees, representatives, legal representatives or brokers has made any representations or warranties whatsoever as to the suitability of the Premises for the conduct of Tenant's business or for any other purpose, and that neither Landlord nor any of Landlord's agents, employees, representatives, legal representatives or brokers agreed to undertake or cause to be undertaken any alterations or to construct any improvements to the Premises 15 or the Shopping Center except as expressly provided in this Lease. Tenant shall have no right to enter or occupy the Premises until the Possession Turnover. Date identified on Exhibit B attached hereto. If Landlord shall for any reason fail to complete that part of Landlord's Work which is required in the Premises prior to Landlord's Work Scheduled Completion Date, Landlord shall not be deemed to be in default hereunder or otherwise liable in damages to Tenant nor shall the Term or any provision of this Lease be affected. (b) Tenant agrees to submit to Landlord on or before the Plan Delivery Date identified on Exhibit B attached hereto plans and specifications in such detail as Landlord may reasonably request covering Tenant's Work as specified in Exhibit "B", and any other work which Tenant proposes to do in the Premises. Such plans and specifications shall comply with all requirements set forth in Exhibit "B". Tenant shall not commence any work in the Premises until Landlord has approved the plans and specifications therefor in writing, which approval shall not be unreasonably withheld or delayed. (c) Upon the Date for Delivery of Possession, Tenant agrees to accept possession thereof and to proceed with due diligence to perform the work described in such plans and specifications which have been approved by Landlord, and to install its fixtures, furniture, and equipment in the Premises. Any work Tenant does in the Premises causing venting, opening, sealing, waterproofing or any altering of the roof shall be performed by Landlord's roofing contractor at Tenant's expense. By occupying the Premises, Tenant shall be deemed to have acknowledged that the Landlord has complied with all of its covenants and obligations with respect to the construction of the Premises, except for defects in Landlord's Work which are latent at the time the Premises are occupied, which shall in any event be deemed waived by Tenant upon the expiration of one (1) year after the date the Premises are occupied by Tenant. In the event of any dispute concerning work performed or required to be performed in the Premises by Landlord or Tenant, the matter in dispute shall be submitted to Landlord's architect for determination and his certificate with respect thereto shall be binding on Landlord and Tenant. (d) Unless delayed in accordance with the provisions of Section 3(a) above, Tenant agrees to open the Premises to the public for business fully fixtured, stocked and staffed for the Permitted Use described in Article 15 of the Basic Lease Provisions no later than thirty (30) days after the Date for Delivery of Possession 44. Mechanic's Liens. If any mechanic's, construction or other liens shall be created or filed against the Leased Premises by reason of labor performed or materials furnished for Tenant in the erection, construction, completion, alteration, repair or addition to any building or improvement, Tenant shall upon demand, at Tenant's own cost and expense, cause such lien or liens to be satisfied and discharged of record together with any lien claims that may have been filed. Failure to do so shall entitle Landlord to resort to such remedies as are provided herein in the case of any default of this Lease, in addition to such as are permitted by law. 45. Remedies. In case of any default, re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a) all rent and additional rent shall be accelerated and shall become due thereupon and be paid up to the time of such re-entry, dispossess and/or expiration; (b) Landlord may re- let the Leased Premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms, which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent or charge a higher rental than that in this Lease; and/or (c) Tenant or the legal representatives of Tenant shall also pay 16 Landlord as liquidated damages for the failure of Tenant to observe and perform said Tenant's covenants herein contained, any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the subsequent lease or leases of the Leased Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease. The failure of Landlord to re-let the Leased Premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such expenses as Landlord may incur in connection with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage, advertising and for keeping the Leased Premises in good order or for preparing the same for re-letting. Any such liquidated damages shall be paid in monthly installments by Tenant on the rent day specified in this Lease. Landlord, in putting the Leased Premises in good order or preparing the same for re-rental may, at Landlord's option, make such alterations, repairs, replacements, and/or decorations in the Leased Premises as Landlord, in Landlord's sole judgment, considers advisable and necessary for the purpose of re-letting the Leased Premises, and the making of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release Tenant from liability. Landlord shall in no event be liable in any way whatsoever for failure to re- let the Leased Premises, or in the event that the Leased Premises are re-let, for failure to collect the rent thereof under such re-letting, and in no event shall Tenant be entitled to receive any excess, if any, of such net rent collected over the sums payable by Tenant to Landlord hereunder. 46. Delay in Giving Possession. This Section applies if Landlord cannot give possession of the Leased Premises on the beginning date because of the retention of possession by any occupant thereof, or for any other reason except as herein provided. Landlord shall then have 30 days in which to give possession. If possession is given within that time, Tenant shall accept possession and pay rent and additional rent from that date. The ending date of the term, and the Lease Year, shall not change. If possession is not given within that time, this Lease may be cancelled by either party on notice to the other. 47. Attorney Fees. In the event that Landlord must retain an attorney to collect rent, enforce any provision of this Lease, defend any action brought by or on behalf of Tenant, or regain possession of the Leased Premises, Tenant shall be liable to Landlord for all reasonable costs and attorney fees associated therewith. In case Landlord shall, without fault on its part, be made a party to any litigation commenced by or against Tenant, then Tenant shall pay all costs, expenses and reasonable attorneys' fees incurred or paid by Landlord in connection with such litigation. In the event of any action, suit or proceeding brought by Landlord to enforce any of the covenants and agreements in this Lease, the Landlord shall be entitled to recover from the Tenant of any costs, expenses and reasonable attorneys' fees incurred in connection with such action, suit or proceeding. 48. Waiver. Landlord's failure to enforce any provision in this Lease shall not prevent Landlord from enforcing any provision at a later time. 49. Rules and Regulations.Tenant shall comply with, and cause its employees, agents and invitees to comply with, all reasonable rules and regulations adopted by Landlord in connection with the use of the Leased Premises and the common areas of the property. 50. )Flours of Operation/Tenant Retail Operating Covenants. (a) Tenant shall not, nor shall Tenant at any time permit any occupant of the Premises to: (i) conduct or permit any fire, bankruptcy or auction sale (whether real or fictitious) unless directed by order of a court of bankruptcy or of competent 17 jurisdiction, or conduct or permit any fictitious "Going Out of Business" sale; (ii) use, or permit to be used, the malls or sidewalks adjacent to such Premises, or any other area outside the Premises for the sale or display of any merchandise or for any other business, occupation or undertaking, or for outdoor public meetings, circus or other entertainment (except for promotional activities in cooperation with the management of the Shopping Center or an association of merchants within the Shopping Center); (iii) use or permit to be used, any sound broadcasting or amplifying device which can be heard outside of the Premises; (iv) use or permit to be used any portion of the Premises for any unlawful purpose or use or permit the use of any portion of the Premises as regular living quarters, sleeping apartments or lodging rooms or for the conduct of any manufacturing business; (v) use the Premises for or conduct therein activities, the purpose for which is not included within the purpose for which the Premises may be used according to Article 15 of the Basic Provisions of this Lease; or (vi) use, operate or maintain the Premises in such manner that any of the rates for any insurance carried by Landlord, or the occupant of any premises within the Shopping Center, shall thereby be increased, unless Tenant shall pay to Landlord or such occupant within the Shopping Center, as the case may be, an amount equal to any such increase in rates, such payment to be made promptly on demand as each premium which shall include such increase shall become due and payable. (b) Tenant: (i) will not represent or advertise that it regularly or customarily sells merchandise at "manufacturers", "distributor's", or "wholesale", warehouse", "fire sale", "bankruptcy sale", or similar prices or other than at retail prices; (ii) will keep all mechanical apparatus free of vibration or noise which may be transmitted beyond the confines of the Premises; (iii) will not cause or permit odors to emanate from the Premises; ('v) will not load or unload or permit the loading or unloading of merchandise, supplies or other property except within the area designated by Landlord from time to time; and (v) will not permit the parking or standing, outside of such designated area, of trucks, trailers or other vehicles or equipment engaged in such loading or unloading. (c) Tenant: (i) will keep clean the inside and outside of all glass in the doors and windows of the Premises; (ii) will replace promptly at its own expense with glass of like kind and quality any plate or window glass; (iii) will replace doors or door hardware of the Premises which may for any reason become cracked or broken; (iv) will maintain the Premises in a clean, orderly and sanitary condition and free of insects, rodents, vermin, and other pests; (v) will not permit undue accumulation of garbage, trash, rubbish or other refuse in the Premises; and (vi) will keep such refuse in proper containers inside the Premises until such time as same is called for to be removed. Tenant will maintain plate glass insurance reasonably satisfactory to Landlord if any plate glass is contained in the store front of the Premises. (d) Tenant shall keep the Premises open for business with the public during all hours when the Shopping Center generally is open for business with the public. Unless the hours during which Shopping Center shall be open for business with the public shall have been otherwise determined by a merchant's association, if in operation, or Landlord if not, Tenant shall keep the Premises open for business during it's self determined hours of operation. 18 Notwithstanding the provisions of this Section, no Tenant shall be required to keep its Premises open for business at any time prohibited by applicable law, ordinance or governmental regulations, and Tenant shall be permitted to close the Premises during reasonable periods for repairing, cleaning or decorating the Premises, with written permission from Landlord. (e) In the event that at any time during the Term, or any extension or renewal thereof, Tenant should vacate, abandon, or desert the Premises or cease operating the store therein fully fixtured, stocked and staffed for the Permitted Use, then, in any such event, Tenant shall be in default hereunder and Landlord shall have, in addition to all rights and remedies provided under this Lease regarding default, the right to collect not only the Minimum Rent and other rent otherwise provided for herein, but also additional rental at the rate of twice the per diem amount of Minimum Rent otherwise payable hereunder for each and every day that Tenant shall fail to do business within the Premises in accordance with the terms of this Lease; provided, however, that such additional rental shall not accrue during any period when the Premises are rendered untenantable by reason of fire, casualty, or cause beyond Tenant's control and not resulting from the intentional or negligent acts or omissions of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, and the failure to operate Tenant's store during such period shall not be deemed a default hereunder. Said additional_ rent is intended to contribute to the expense of monitoring the occupancy of the Premises and shall not be deemed a penalty or liquidated damages. 51. Nondisclosure of Lease Terms. Tenant acknowledges and agrees to maintain the confidentiality of the essential business terms of this Lease, and in particular, the financial terms. In no event will Tenant disclose such terms to other tenants or prospective tenants of the center. 52. Waiver of Jury Trial. Landlord and Tenant hereby mutually waive trial by jury in any proceeding concerning this Lease or arising therefrom. 53. Full Execution.This Lease shall not be binding on either party until it is executed by all parties and delivered to all parties. 54. Parking. Intentionally Left Blank 55. Tenant Estoppel Certificate. Tenant agrees to at any time and from time to time, within ten (10) days after Landlord's written request, execute, acknowledge and deliver to Landlord a written instrument certifying the Commencement Date, that Tenant has accepted possession of the Leased Premises and is open for business, that this Lease is unmodified and in full force and effect (or if there have been modifications, that it is in full force and effect as modified and stating the modifications), the dates to which Base Rent, Additional Rent and other charges have been paid in advance, if any, and stating whether or not to the best knowledge of the signer of such certificate, Landlord is in default in the performance of any covenant, agreement or condition contained in this Lease and, if so, specifying in 19 detail each such default of which the signer may or should have knowledge; and certifying such other matters as may be reasonably requested by Landlord. 56. Right to Relocate. As a material inducement for Landlord to enter into this Lease with Tenant, Landlord shall, throughout the Term of this Lease and any renewals thereof, have the right at Landlord's expense to relocate Tenant to other premises (the "New Premises") within the property. In the event Landlord elects to exercise the right of relocation, Landlord shall deliver written notice ("Landlord's Notice") to Tenant identifying the location of the New Premises and the date on which the Tenant shall be moved to the New Premises, which date shall not be less than 30 days from Tenant's receipt of Landlord's Notice. The square footage and frontage of the New Premises shall not be more than fifteen percent (15%) larger nor fifteen percent (15%) smaller than the Leased Premises. In the event that the New Premises do not consist of the identical number of square feet as the Leased Premises, the parties shall execute an instrument specifying the new number of square feet in the New Premises, and the new number of square feet shall be deemed effective as of the date on which the New Premises is delivered to Tenant. All rent shall be adjusted accordingly. 57. Cleaning Premises. Upon vacating the Premises, Tenant agrees to return the Premises to Landlord broom clean and in the same condition when Tenant's possession commenced, natural wear and tear excepted, regardless of whether any Security Deposit has been forfeited. 58. Removal of Fixtures. If Tenant is not in default hereunder, Tenant may, prior to the expiration of the Term of this Lease, or any extension thereof, remove any fixtures and equipment which Tenant has placed in the Premises which can be removed without significant damage to the Premises, provided Tenant promptly repairs all damages to the Premises caused by such removal. 59. Holding Over. If Tenant shall be in possession of the Leased Premises after the termination date of the Lease, and in the absence of any agreement extending the Term hereof or Landlord's demand to Tenant to sooner vacate the Leased Premises, the tenancy under this Lease shall become one from month to month terminable by either party on thirty (30) days prior written notice, at a monthly rental equal to one and one-half times the sum of (i) the monthly installment of Base Rent payable during the last month of the Term and (ii) the monthly installment of Additional Rent payable during the last month of the Term. Tenant shall also pay all other charges payable under the terms of the Lease, prorated for the period during which Tenant remains in possession. Such tenancy shall also be subject to all other conditions, provisions, and obligations of this Lease. Tenant shall not interpose any counterclaim or counterclaims in a summary proceeding or other action based on holdover. The provisions of this Section shall be in addition to any liability Tenant may have to Landlord in respect of its holdover. 60. Demolition. As a material inducement for Landlord to enter into this Lease with Tenant and to afford Landlord the opportunity to redevelop the Shopping Center in order to maximize its economic potential throughout the Term of this Lease, should Landlord decide to demolish no less than fifty (50) percent of the total gross square footage of all buildings in the Shopping Center, exclusive of space occupied by Anchor Tenants (which term for the purposes if this Paragraph shall mean any tenant(s) in the Shopping Center leasing 15,000 or greater gross square feet), Landlord shall have the absolute right to terminate this Lease upon the giving of six (6) months prior written notice ("Demolition Notice") to Tenant. Should Landlord give the Demolition Notice, the Term of this Lease shall expire and terminate on the date set forth in said Notice as if said date were the expiration date of the Term of this Lease originally provided for in this Lease. 20 61. Liability Of Landlord If Landlord is found to have failed to perform any covenant, term or condition of this Lease, and if Tenant shall recover a money judgment against Landlord for such failure, the judgment shall be satisfied only out of the proceeds of sale received upon execution of the judgment and levy against the right, title and interest of Landlord in the Shopping Center as the same may then be encumbered, and neither Landlord nor any of its partners shall be liable for any deficiency. It is understood that in no event shall Tenant have the right to levy execution against any property of Landlord other than its interest in the Shopping Center. The right of execution shall be subordinate and subject to any mortgage or other encumbrance upon the Shopping Center. No trustee, shareholder, officer, member, director, employee, parent or subsidiary company, Landlord affiliate or partner of Landlord shall in any event or at any time be personally liable for the payment of performance of any obligation required or permitted of Landlord under this Lease or under any document executed in connection herewith. No attachment, execution, writ or other process shall be sought or obtained, and no judicial proceeding shall be initiated by or on behalf of Tenant, against Landlord personally or Landlord's assets (other than Landlord's interest in the Shopping Center) as a result of any such failure, breach or default under this Lease, and neither they, nor Landlord nor any Landlord affiliate, shall be liable for any deficiency. 62. Hazardous Materials/Indemnification. (a) Tenant shall not cause or permit the receipt, storage, use, location or handling in the Shopping Center (including the Premises) of any product, material or merchandise which is explosive, highly inflammable, or a "hazardous or toxic material," as that term is hereafter defined. "Hazardous or toxic material" shall include all materials or substances which have been determined to be hazardous to health or the environment and are regulated or subject to all applicable laws, rules and regulations from time to time, including, without limitation hazardous waste (as defined in the Resource Conservation and Recovery Act); hazardous substances (as defined in the Comprehensive Emergency Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act); gasoline or any other petroleum product or by-product or other hydrocarbon derivative; toxic substances, (as defined by the Toxic Substances Control Act); insecticides, fungicides or rodenticide, (as defined in the Federal Insecticide, Fungicide, and Rodenticide Act); asbestos and radon and substances determined to be hazardous under the Occupational Safety and Health Act or regulations promulgated thereunder. Notwithstanding the foregoing, Tenant shall not be in breach of this provision as a result of the presence in the Premises of minor amounts of hazardous or toxic materials which are in compliance with all applicable laws, ordinances and regulations and are customarily present in a general retail use (e.g., computer chemicals, and janitorial supplies). (b) Without limiting in any way Tenant's obligations under any other provision of this Lease, Tenant and its successors and assigns shall indemnify, protect, defend (with counsel approved by Landlord) and hold Landlord, its partners, officers, directors, shareholders, employees, agents, lenders, contractors and each of their respective successors and assigns (the "Indemnified Parties") harmless from any and all claims, damages, liabilities, losses, costs and expenses of any nature whatsoever, known or unknown, contingent or otherwise (including, without limitation, attorneys' fees, litigation, arbitration and administrative proceedings costs, expert and consultant fees and laboratory costs, as well as damages arising out of the diminution in the value of the Premises or any portion thereof, damages for the loss of the Premises, damages arising from any adverse impact on the marketing of space in the Premises and sums paid in settlement of claims), which arise during or after the Term in whole or in part as a result of the presence or suspected presence of any hazardous or toxic materials, in, on, under, from or about the Premises due to Tenant's acts or omissions, on or about the Premises, unless such claims, damages, liabilities, losses, costs and expenses arise out of or are caused by the negligence or willful misconduct of 21 any of the Indemnified Parties. Landlord and its successors and assigns shall indemnify and hold Tenant and its successors and assigns harmless against all such claims or damages if arising out of or caused by the negligence or willful misconduct of Landlord, its agents or employees. The indemnities contained herein shall survive the expiration or earlier termination of this Lease. 63. Authority. If Tenant executes this Lease as a corporation, limited partnership, limited liability company or any other type of entity, each of the persons executing this Lease on behalf of Tenant does hereby personally represent and warrant that Tenant is a duly organized and validly existing corporation, limited partnership, limited liability company or other type of entity, that Tenant is qualified to do business in the state where the Building is located, that Tenant has full right, power and authority to enter into this Lease, and that each person signing on behalf of Tenant is authorized to do so. In the event any such representation and warranty is false, all persons who execute this Lease shall be individually, jointly and severally, liable as Tenant. Upon Landlord's request, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord confirming the foregoing representations and warranties. 64. Miscellaneous. No agreement to accept a surrender of the Leased Premises shall be valid unless in writing signed by Landlord. The delivery of keys to any employee of Landlord or of Landlord's agents s hall not operate as a termination of this Lease or a surrender of the Leased Premises. The failure of Landlord to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of this Lease, or of any rule or regulation, shall not prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach. No provision of this Lease shall be deemed to have been waived by Landlord, unless such waiver be in writing and signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check nor any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy provided in this Lease. This Lease contains the entire agreement between the parties, and any agreement hereafter made shall be ineffective to change, modify or discharge it in whole or in part, unless such agreement is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. 65. Governing Law The laws of the State in which the Leased Premises is located shall govern the interpretation, validity, performance and enforcement of this Lease. If any provision of this Lease should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Lease shall not be affected hereby. 66. Sale. In the event the original Landlord hereunder, or any successor owner of the Shopping Center, shall sell or convey the Shopping Center, all liabilities and obligations on the part of the original Landlord, or such successor owner, under this Lease accruing thereafter shall terminate, and thereupon all such liabilities and obligations shall be binding upon the new owner. Tenant agrees to attorn to such new owner. 22 67. Limitation of Liability. Landlord's obligations and liability with respect to this Lease shall be limited solely to Landlord's interest in the Shopping Center, as such interest is constituted from time to time, and neither Landlord nor any partner of Landlord, or any officer, director, shareholder, or partner or member of any partner or member of Landlord, shall have any individual or personal liability whatsoever with respect to this Lease. 68. CONFESSION OF JUDGMENT (A) ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD IS HEREBY IRREVOCABLY AUTHORIZED AND EMPOWERED TO APPEAR FOR TENANT IN ANY ACTION TO CONFESS JUDGMENT AGAINST TENANT, AND MAY SIGN FOR TENANT AN AGREEMENT, FOR WHICH THIS LEASE SHALL BE HIS SUFFICIENT WARRANT, FOR ENTERING IN ANY COMPETENT COURT AN ACTION OR ACTIONS IN EJECTMENT, AND IN ANY SUITS OR IN SAID ACTIONS TO CONFESS JUDGMENT AGAINST TENANT AS WELL AS ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE PREMISES. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ANY ONE OR MORE EXERCISES THEREOF, BUT JUDGMENT MAY BE CONFESSED FROM TIME TO TIME AS OFTEN AS ANY EVENT SET FORTH IN THIS LEASE SHALL HAVE OCCURRED OR BE CONTINUING. SUCH POWERS MAY BE EXERCISED DURING AS WELL AS AFTER THE EXPIRATION OR TERMINATION OF THE ORIGINAL TERM AND DURING AND AT ANY TIME AFTER ANY EXTENSION OR RENEWAL OF THE TERM, AND/OR (B) IF TENANT SHALL DEFAULT IN THE PAYMENT OF RENT RESERVED OR PAYABLE HEREUNDER OR IN THE PAYMENT OF ANY OTHER SUMS DUE HEREUNDER BY TENANT, TENANT HEREBY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR TENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR SAID RENT AND SAID OTHER SUMS; AND TO SIGN FOR TENANT AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION OR ACTIONS FOR THE RECOVERY OF SAID RENT AND OTHER SUMS, AND IN SAID SUITS OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST TENANT FOR ALL OR ANY PART OF SAID RENT AND SAID OTHER SUMS, INCLUDING, BUT NOT LIMITED TO, THE AMOUNTS DUE FROM TENANT TO LANDLORD UNDER EACH OF THE SUBSECTIONS OF THIS SECTION AND FOR INTEREST AND COSTS, TOGETHER WITH A REASONABLE ATTORNEY'S COMMISSION FOR COLLECTION OF NOT LESS THAN FIVE THOUSAND DOLLARS ($5,000). SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF SAID RENT AND OTHER SUMS SHALL FALL DUE OR BE IN ARREARS AND SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE TERM OF THIS LEASE, THIS LEASE PROVIDES FOR THE CONFESSION OF JUDGMENT AGAINST TENANT FOR MONEY AND FOR EJECTMENT. IN CONNECTION THEREWITH, TENANT, KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND UPON ADVICE OF SEPARATE COUNSEL, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF 23 PENNSYLVANIA. WITHOUT LIMITATION OF THE FOREGOING, TENANT HEREBY SPECIFICALLY WAIVES ALL RIGHTS TENANT HAS OR MAY HAVE TO NOTICE AND OPPORTUNITY FOR A HEARING PRIOR TO EXECUTION UPON ANY JUDGMENT CONFESSED AGAINST TENANT BY LANDLORD HEREUNDER. TENANT (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF LANDLORD HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LANDLORD WILL NOT SEEK TO EXERCISE OR ENFORCE ITS RIGHTS TO CONFESS JUDGMENT HEREUNDER, AND (II) ACKNOWLEDGES THAT THE EXECUTION OF THIS LEASE BY LANDLORD HAS BEEN MATERIALLY INDUCED BY, AMONG OTHER THINGS, THE INCLUSION IN THIS LEASE OF SAID RIGHTS TO CONFESS JUDGMENT AGAINST TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS SAID PROVISIONS WITH TENANT'S INDEPENDENT LEGAL COUNSEL AND THAT THE MEANING AND EFFECT OF SUCH PROVISIONS HAVE BEEN FULLY EXPLAINED TO TENANT BY SUCH COUNSEL, AND AS EVIDENCE OF SUCH FACT AN AUTHORIZED OFFICER OF TENANT SIGNS HIS OR HER INITIALS IN THE SPACE yA PROVIDED BELOW. t° _1Q (Initials) v 69. Tenant's Gross Sales/ Sales Reports and Records. Intentionally Left Blank 70. Percentage Rent. Intentionally Left Blank IN WITNESS WHEREOF, the parties hereto are executing this Lease on the date first written above. By signing below, all parties agree to be bound by all terms and conditions set forth in the lease form to which this Addendum is attached. Landlord: Witnessed or Attested By: PR REAL ESTATE, LLC & HOME ELITE, LT,p N By: Name: Title: Tenants: FOXY FITNESS, LLC A CONTOURS EXPRESS FRANCHISEE /01. By. 24 P p Name: EXHIBIT "A" PROPERTY [ATTACH SHOPPING CENTER SITE PLAN] 25 EXHIBIT "A- I " PREMISES [ATTACH PLAN SHOWING PREMISES BY DIAGONAL LINES] Error! Unknown document property name. EXHIBIT "B" INTENTIONALLY LEFT BLANK Error'. Unknown document property name. WORK LETTER AGREEMENT B-1 SCHEDULEI Landlord's Work Space to be demised between Suites 18 & 19 and wall shall be paint ready. Also, removal of the middle wall/partition. B-2 Error! Unknown document property'name. SCHEDULE II plan Delivery Date: N/A Contractor Selection Date: N/A Possession Turnover Date: N/A Tenant Improvement Allowance: NONE B-3 Error! Unknown document property name. EXHIBIT "C" COMMENCEMENT DATE/ACCEPTANCE LETTER INTENTIONALLY LEFT BLANK C-1 Error! Unknown document property name. ----. PINTZUK BROWN REALTY GROUP VIA US MAIL Tammy Sisto & Rebecca Fox Foxy Fitness, LLC 1916 County Line Road York Springs, PA 17372 RE: Memorandum of Lease Term - Delivery of Possession - East Gate Plaza Tammy and Rebecca: This letter shall serve to memorialize the date which Delivery of Possession for your Leased Premises occurred. Pursuant to your Lease dated June 30, 2005 the date for Delivery of Possession occurred on August 19, 2005. Although the Lease Agreement called for Rent Commencement to occur Sixty (60) Days following Delivery of Possession, the Landlord has agreed to extend the Rent Commencement Date to November 1, 2005. Please acknowledge your acceptance of this letter and return an original signed copy to me at the letterhead address. This letter shall become Exhibit C of your Lease, Please attach it as such. Thank You, Ito R. Christopher Datz, Director of Asset Management Services Acknowledged Foxy Fitness, LLC ? w cry ? 1 Tammy Sisto Rebecca Fox 491 Old York Road, Suite 200 w Jenkintown, PA 19046 Office: 215-881-8980 • Fax: 215-881-8983 • Web: www.pbrginc.com EXHIBIT "D" USE RESTRICTIONS Notwithstanding any other provision of this Lease, and without in any way expanding the use of the Premises permitted hereunder, Tenant acknowledges and agrees that its use of the Premises is subject to and will riot violate the restrictions and exclusives set forth hereinbelow: TENANT SHALL HAVE THE EXCLUSIVE RIGHT TO OPERATE A WOMEN'S FITNESS CENTER. D-1 Error! Unknown document property name. EXHIBIT' RULES AND REGULATIONS Rules and Regulations 1. No radio or television or other similar devices shall be installed without first obtaining in each instance Landlord's consent in writing. No aerial shall be erected on the roof or exterior walls of the Leased Premises, or on the grounds, without in each instance, the written consent of Landlord. Amy aerial so installed without such written consent shall be subject to removal without notice at any time at Tenant's expense. 2. No loud speakers, televisions, phonographs, radios or other devices shall be used in a manner so as to be heard or seen outside of the Leased Premises without the prior written consent of Landlord. 3. If the Leased Premises are equipped with heating facilities separate from those in the remainder of the Shopping Center, Tenant shall keep the Leased Premises at a temperature sufficiently high to prevent freezing of water in pipes and fixtures. 4. The outside areas immediately adjoining the Leased Premises shall be kept clean and free from snow, ice, dirt and rubbish by Tenant to the satisfaction of the Landlord, and Tenant shall not place or permit any obstructions or merchandise in such areas. 5 The plumbing facilities shall not be used for any other purpose than that for which they are constructed, and no foreign substance of any kind shall be thrown therein, and the expense of any breakage, stoppage, or damage resulting from a violation of this provision shall be borne by Tenant. 6. Tenant shall not burn any trash or garbage of any kind in or about the Leased Premises, the Shopping Center, or within one mile of the outside property lines of the Shopping Center. 7. All deliveries or shipments of any kind to and from the Leased Premises, including loading of goods, shall be made only by way of the rear of the Leased Premises or at any other location designated by Landlord, and only at such reasonable time designated for such purpose by Landlord. 8. Tenant shall not use the public or common areas in the Shopping Center for business purposes or special events unless prior approval in writing has been granted by the Landlord. 9. Tenant shalt use, at Tenant's cost, a pest extermination contractor at such intervals as Landlord may require, but no less often than once annually. 10. Tenant shall not place, or permit, displays, decoration or shopping carts on the sidewalk in front of the Leased Premises or upon any of the common areas of the Shopping Center. 11. Tenant shall not cause or permit any unusual or objectionable odors to be produced upon or within, or released from, the Leased Premises. F-1 Error? Unknown document property name. EXHIBIT T" UTILITIES A) Tenant shall be responsible for their share of water usage and sewer billed on a quarterly or monthly basis and shall contract directly for such service. B) Tenant shall contract directly with the local provider of gas and electric service to the leased premises. F-2 Error! Unknown document property name. EXHIBIT "G" INTENTIONALLY LEFT BLANK Error! Unknown document property name. SIGN CRITERIA G-1 EXHIBIT "H" FORM OF GUARANTY TAMMY SISTO AND REBECCA FOX SHALL PERSONALLY GUARANTEE THE FINANCIAL OBLIGATIONS OF THIS LEASE FOR A PERIOD OF TWO YEARS FROM THE RENT COMMENCEMENT DATE. H-1 Error! Unknown document property name. EXHIBIT "I" STATE/LOCAL LAW PROVISIONS ITENTIONALLY LEFT BLANK I-1 Error! Unknown document property name. EXHIBIT "J" SPECIAL STIPULATIONS INTENTIONALLY LEFT BLANK I-2 Error! Unknown document property name. ATTORNEYS AT ! A W September 10, 2007 Reply To: PHILADELPHIA Foxy Fitness, LLC, a Contours Express Franchisee 1601 Market Street Ms. Tammy Sisto Ms. Rebecca Fox Suite 2600 Philadelphia, PA 19103 Via Regular and Certified Mail at (215) 5630500 5202 Simpson Ferry Road Fax: (215) 563-5532 East Gate Plaza, Suite 18 Mechanicsburg, PA 17050 10 Melrose Avenue and Suite 430 Cherry Hill, NJ 08003 1916 County Line Road York Springs, PA 17372 (856) 216-2322 Fax: (856) 216-2392 Via E-mail at contoursexpress-Mechanicsburg@hotmail.com 15 North Shore Road RE: Pintzuk Brown Realty Group Marmora, NJ 08223 (609) 190-0127 Dear Ms. Sisto and Ms. Fox: Fax: (b09) 390-0244 My firm has been retained by Pintzuk Brown Realty Group ("Pintzuk") in order to pursue amounts due and owing by you under the www.fpdb.com terms of your lease with P.R. Real Estate, LLC & Home Elite, Ltd. Under the terms of the lease, you personally guaranteed the financial obligations of the lease for a period of two (2) years from the rent commencement date (November 1, 2005). The financial obligations of the lease as of November 1, 2007 will be $18,070.57. In addition, because Pintzuk has been forced by you to employ our firm, under the terms of the lease, you are obligated to pay for any attorneys' fees and costs Pintzuk incurs in pursuing amounts owed. You have been advised multiple times that you are in default under the terms of the lease. Furthermore, Pintzuk has made multiple Frey Petrakis Deeb Blum & Briggs, PC. F R E Y PETE K I S D E E B B L U M & BR GS, P.C. Foxy Fitness, LLC, a Contours Express Franchisee Ms. Tammy Sisto Ms. Rebecca Fox September 10, 2007 Page 2 attempts to structure some sort of payment arrangement with you in order to settle the matter without resort to litigation. However, you have failed to make any good faith effort to satisfy the amounts due and owing. I suggest that we explore opportunities to amicably settle this matter. As such, this letter is for the purposes of settlement only, and cannot be used for any other purpose or introduced as evidence in any proceeding. Please contact me at your earliest convenience to discuss your fulfillment of your monetary obligations under the lease in order to settle this matter. Please respond within ten (10) days of the date of this letter so that we can timely move this matter forward. Please be advised that Pintzuk has authorized my firm to pursue, to the fullest extent possible under Pennsylvania law, all amounts due and owing by you. If I do not hear from you within 10 days, my client will have no other choice but to initiate litigation against you and follow all other recourse available to obtain payment. I look forward to hearing from you. Ve truly you4HH RIS eAM. CMH / smc b , ?" ? ?x?? ATTORNEYS AT LAW January 15, 2008 Reply To: PHILADELPHIA Foxy Fitness, LLC, a Contours Express Franchisee 1601 Market Street Ms. Tammy Sisto Ms. Rebecca Fox Suite 2600 Philadelphia, PA 19103 Via. Regular and Certified Mail at: (215) 563-0500 5202 Simpson Ferry Road Fax: (215) 563-5532 East Gate Plaza, Suite 18 Mechanicsburg, PA 17050 10 Melrose Avenue and Suite 430 Cherry Hill, NJ 08003 1916 County Line Road York Springs, PA 17372 (856) 216-2322 Fax: (856) 216-2392 Via E-mail at contoursexpress-mechanicsburg@hotmail.com 15 North Shore Road RE: Pintzuk Brown Realty Group Marmora, NJ 08223 (609) 390-0127 Dear Ms. Sisto and Ms. Fox: Fax: (609) 390-0244 As I advised in my letter dated September 10, 2007, my firm has been retained by Pintzuk Brown Realty Group ("Pintzuk") in order to www.fpdb.com pursue amounts due and owing by you under the terms of your lease with P.R. Real Estate, LLC & Home Elite, Ltd. Under the terms of the lease, you personally guaranteed the financial obligations of the lease for a period of two (2) years from the rent commencement date (November 1, 2005). The financial obligations of the lease as of November 1, 2007 are $18,170.57. In addition, because Pintzuk has been forced by you to employ our firm, under the terms of the lease, you are obligated to pay for any attorneys' fees and costs Pintzuk incurs in pursuing amounts owed. As of the date of this letter, Pintzuk has incurred approximately $2,500.00 in legal fees and costs. If Pintzuk is forced to initiate litigation Frey Petrakis Deeb Blum & Briggs, P.C. F R E Y PE_ .cAKIS D E E B B L U M & B GGS, P.C. Foxy Fitness, LLC, a Contours Express Franchisee Ms. Tammy Sisto Ms. Rebecca Fox January 15, 2008 Page 2 and confess judgment against you, under the terms of the lease, reasonable attorneys' commission will be not less than $5,000.00. You have been advised multiple times that you are in default under the terms of the lease. Furthermore, Pintzuk has made multiple attempts to structure some sort of payment arrangement with you in order to settle the matter without resort to litigation. As per your letter dated September 28, 2007, you have sought "legal counsel." Please forward this letter to your attorney or have your attorney contact me. If you are not represented by counsel, I request that you personally contact me to discuss your fulfillment of your monetary obligations under the lease. At this time, Pintzuk wishes to explore opportunities to amicably settle this matter. Therefore, this letter is for the purposes of settlement only, and cannot be used for any other purpose or introduced as evidence in any proceeding. However, please be advised that Pintzuk has authorized my firm to pursue, to the fullest extent possible under Pennsylvania law, all amounts due and owing by you. Please respond within fifteen (15) days of the date of this letter so that we can timely move this matter forward. If I do not hear from you within 15 days, my client will have no other choice but to initiate litigation against you and follow all other recourse available to obtain payment. I look forward to hearing from you. 2Ver/y,. ly yours, I A M. HUS CMH/smc Ul L t ? ? b ? 73 -73 f ..'_ r n r7l cr3 r r rn l7 CLA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants 236 NOTICE NOTICE IS GIVEN THAT A JUDGMENT IN THE ABOVE CAPTIONED MATTER HAS BEEN ENTERED AGAINST YOU FOR PAST RENT OWED IN THE AMOUNT OF $23,170.57 (principal sum plus attorneys' commission). ENCLOSED HEREWITH IS A COPY OF ALL THE DOCUMENTS FILED IN SUPPORT OF THE SAID JUDGMENT. /? 044'LdL? p-, &41 ,, CURTIS R. LONG PROTHONOTARY d-105108 IF YOU HAVE ANY QUESTIONS CONCERNING THE ABOVE, PLEASE CONTACT: Dated:- &'41 FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: 't.7.h ?44 I.D. Nos. 65886/91635 Frank G. Mu y, Esquire Christina M. Hughes, Esquire 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. 3vt (7erw+ Defendants ORDER FOR APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance as attorneys for the Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, in the above-entitled matter. Dated: FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: _ A kWN ? " FRAN G. MURP , ESQUIRE CHRISTINA M. HUGHES, ESQUIRE Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC ('a N c: w 1, ? , ??-?.?. CJ7 ,..1 _...g?, f ? ?'? ? _ ? ? FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. D$- 80 Civi ( Iem Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance for the Defendants, Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox, on whose behalf we confess judgment for money in the sum of $23,170.57. FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: -A" Frank G. Mu y, Esquire Christina M. ughes, Esquire Attorneys for Defendants - ioirv Dated: C'1 C -n "? M t? rn- s „ t rn orn SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-00841 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOME ELITE LTD VS FOXY FITNESS LLC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: FOXY FITNESS LLC T/A CONTOURS EXPRESS but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of YORK serve the within COMPLT-CONFES JUDGMENT County, Pennsylvania, to On March 7th , 2008 this office was in receipt of the attached return from YORK Sheriff's Costs: So answe Docketing 18.00 - ??- Out of County 9.00 ` Surcharge 10.00 Thomas Kline Dep Adams County 59.00 Sheriff of Cumberland County Postage 2.21 98.21 ? 3?/a?BV C / ?, 03/07/2008 FREY PETRAKIS DEEB BLUM Sworn and subscribe to before me this day of , A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-00841 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOME ELITE LTD VS FOXY FITNESS LLC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: SISTO TAMMY but was unable to locate Her deputized the sheriff of ADAMS in his bailiwick. He therefore serve the within COMPLT-CONFES JUDGMENT County, Pennsylvania, to On March 7th 2008 , this office was in receipt of t attached return from ADAMS Sheriff's Costs: So answerers Docketing 6.00 Out of County .00 Surcharge 10.00 R. Thomas Kline .00 Sheriff of Cumberland County .00- 3/? a/Ob C 16.00 03/07/2008 FREY PETRAKIS DEEB BLUM Sworn and subscribe to before me this day of A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-00841 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOME ELITE LTD VS FOXY FITNESS LLC ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENnANT FOX REBECCA but was unable to locate Her deputized the sheriff of ADAMS serve the within COMPLT-CONFES JUDGMENT , to wit: He therefore County, Pennsylvania, to On March 7th 2008 , this office was in receipt of attached return from ADAMS Sheriff's Costs: Docketing Out of County Surcharge So answers-;,,- 6.00 -- .00 10.00 R. Thomas Kline .00 Sheriff of Cumberland County .00 16.00 ? 3Il1JDP 03/07/2008 FREY PETRAKIS DEEB BLUM Sworn and subscribe to before me this day of in his bailiwick A. D. In The Court of Common Pleas of Cumberland County, Pennsylvania Home Elite LTD et al VS. Foxy Fitness LLC et al SERVE: Foxy Fitness LLC t/a Contours Express No. Now, February 12, 2008 hereby deputize the Sheriff of Adams 08-841 civil I, SHERIFF OF CUMBERLAND COUNTY, PA, do deputation being made at the request and risk of the Plaintiff. County to execute this Writ, this Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, February 21 , 2008 'at 1:05 o'clock P. M. served the within 236 Notice & Complaint For Confession of Judgment upon Foxy Fitness, LLC t/a Contour Express at 1916 County Line Road, York Springs, PA by handing to Tammy Sisto, adult in charge a true & attested copy of the original Notice & Complaint and made known to Tammy Sisto the contents thereof. Sworn and subscribed before me this day of N/A , 20 So answers, y beriff Jason Kirkner epheriff of IAdams Co %, PA COSTS SERVICE $ 29.00 MILEAGE 30.00 AFFIDAVIT $59.00 Pd. X4,/08 P.% ?? :?? a h, ??? ?o?? In The Court of Common Pleas of Cumberland County, Pennsylvania Home Elite LTD et al vs. Foxy Fitness LLC et al SERVE: Tammy Sisto No. 08-841 civil Now, February 12, 2008 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Adams County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, February 21 , 20 08 , at 1:05 o'clock P. M. served the within 236 Notice & Complaint For Confession of Judgment upon Tammy Sisto at 1916 County Line Road, York Springs, PA by handing to Tammy Sisto a true & attested copy of the original Notice & Complaint and made known to Tammy Sisto the contents thereof. Sworn and subscribed before me this day of N/A , 20 So answers, u e i Jason-Kirk e C?n?,r?s-0 LU riff of Adams County, PA COSTS SERVICE _ MILEAGE _ AFFIDAVIT $ Included on another return S r"( Cl; IT.. i) ?_.l l?JE?iJ q E :1 E d h I riA 8001 In The Court of Common Pleas ®f Cumberland County, Pennsylvania Home Elite LTD et al vs. Foxy Fitness LLC et al SERVE: Rebecca Fox Now, February 12, 2008 hereby deputize the Sheriff of Adams I, SHERIFF OF CUMBERLAND COUNTY, PA, do deputation being made at the request and risk of the Plaintiff. County to execute this Writ, this Sheriff of Cumberland County, PA Please mail return of service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, Tebruary 27 , 2008 return the within 236 Notice and Complaint For Confession of Judgment defendant NOT FOUND in Adams County. Defendant possible residing in the state of Colorado. York Springs Post Office has no change of address on file. So answers, t 't/-" '6?? I- pu Seri Jason Kirkn S eriff of Adams County, PA COSTS Sworn and subscribed before SERVICE me this day of N/A 320 MILEAGE AFFIDAVIT No. 08-841 civil $ Included OD another return c t i d h i? 2111 01 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW : Docket No. O$_ Sq j (,Ml Term Defendants : 236 NOTICE NOTICE IS GIVEN THAT A JUDGMENT IN THE ABOVE CAPTIONED MATTER HAS BEEN ENTERED AGAINST YOU FOR PAST RENT OWED IN THE AMOUNT OF $23,170.57 (principal sum plus attorneys' commission). ENCLOSED HEREWITH IS A COPY OF ALL THE DOCUMENTS FILED IN SUPPORT OF THE SAID JUDGMENT. /5/ l l u.-? k • ? p, CURR. LONG PROTHONOTARY 406/0g IF YOU HAVE ANY QUESTIONS CONCERNING THE ABOVE, PLEASE CONTACT: FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: kio(" I.D. Nos. 65886 91635 Frank G. Mu y, Esquire Christina M. Hughes, Esquire 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC Dated: " COPY FROM RECORD In TGSNMW whereof, there unto sat my had od t+" seal of said court at Cariisiet Pa. FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. COMPLAINT FOR CONFESSION OF JUDGMENT UNDER PENNSYLVANIA RULES OF CIVIL PROCEDURE 2950, ET SEQ. Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, (hereinafter "Plaintiffs" or "Landlords"), by and through their attorneys Frey, Petrakis, Deeb, Blum & Murphy, P.C., file this Complaint for judgment by confession pursuant to Rules 2950, et seq., of the Pennsylvania Rules of Civil Procedure and, in support hereof, state as follows: THE PARTIES 1. Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, are owners of a shopping center commonly known as East Gate Plaza, located at 5205 Simpson Ferry Road, Mechanicsburg, Pennsylvania 17055, as tenants in common and have a place of business located at 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046. 2. Defendant, Foxy Fitness, LLC, t/a Contours Express (hereinafter "Contours Express" or together with Co-Defendants "Defendants"), upon information and belief, is a business which last operated at 5205 Simpson Road, Suite 18, Mechanicsburg, Pennsylvania 17055 with a last known address at 1916 County Line Road, York Springs, PA 17372. 3. Defendant, Tammy Sisto (hereinafter "Sisto" or together with Co- Defendants "Defendants"), upon information and belief, is an individual operating a business and has a last known address of 1916 County Line Road, York Springs, PA 17372. 4. Defendant, Rebecca Fox (hereinafter "Fox" or together with Co- Defendants "Defendants"), upon information and belief, is an individual operating a business and has a last known address of 1916 County Line Road, York Springs, PA 17372. 5. Pintzuk Brown Realty Group (hereinafter "Pintzuk") is an authorized agent of and acts on behalf of Plaintiffs and has a place of business located at 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046. See Affidavit of Scott Homel attached hereto, incorporated herein, and marked as Exhibit "A." COUNT I FOR JUDGMENT OF MONEY (PAST RENT OWED) Pa.R.C.P. 2950, et sea. 6. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein at length. 7. Defendants were in occupancy and possession of 1,900 square feet of commercial space known as Suite 18, located at the shopping center commonly known as East Gate Plaza, located at 5205 Simpson Ferry Road, Mechanicsburg, Pennsylvania 17055 (the "Property") and utilized the space as a fitness center known as Contours Express during the relevant time period. 8. The owners of the Property, during the relevant time period, were Home Elite Ltd. and P.R. Real Estate, LLC. 9. The Defendants leased the Property from Home Elite Ltd. and P.R. Real Estate, LLC for commercial use pursuant to a written agreement (as the same has been amended, assigned, restated, or otherwise modified through the date hereof, "Lease"). See a true and correct copy of the Lease which is attached hereto, incorporated herein, and marked as Exhibit "B;" all applicable terms are highlighted in yellow for the Court's convenience. 10. Sisto personally guaranteed the financial obligations of the Lease for a period of two (2) years from the Rent Commencement Date, November 1, 2005, as defined by the Lease. See Exhibits "C" and "H" of Exhibit B. 11. Fox personally guaranteed the financial obligations of the Lease for a period of two (2) years from the Rent Commencement Date, November 1, 2005, as defined by the Lease. See Exhibits "C" and "H" of Exhibit B. 12. Pursuant to the terms of the Lease, the Defendants are required to pay to the Plaintiffs a monthly fixed Rent. See Exhibit B. 13. In addition, the Defendants are obligated under the Lease to pay the Plaintiffs Additional Rent in the form of, inter alia, operating expenses, utilities, insurance, and taxes. See Exhibit B. 14. Defendants have defaulted on their obligations under the Lease by virtue of their failure to pay the Plaintiffs Rent and Additional Rent in the amount of $18,170.57, as follows: Y /E 2005 CTI Reconciliation Charge $689.72 RENT (10/2006) $1,500.00 Cam Taxes Insurance (10/2006) $550.00 October Late Fees, 10% of 2050.00 $205.00 Chk No. 1333 $4,100.00 Rent 11 2006 $1,583.33 Cam/Taxes/ Insurance (11/2006) $550.00 Rent 12 2006 $1,583.33 Cam/Taxes/ Insurance (12/2006) $550.00 Chk No. 1355 $2,216.16 Rent 1 2007 $1,583.33 Cam/Taxes/ Insurance (1/2007) $550.00 Chk No. 1363 $2,133.33 January Late Fee, 10% of $0.05 $0.05 Rent (2/2007) $1,583.33 Cam Taxes Insurance (2/2007) $550.00 February Late Fee, 10% of $2133.83 $213.38 Rent (3/2007) $1,583.33 Cam Taxes Insurance (3/2007) $550.00 March Late Fees, 10% of $4,267.16 $426.72 Rent (4/2007) $1,583.33 Cam/Taxes/ Insurance (4/2007) $550.00 Chk No. 1022 $1,583.33 April Late Fees, 10% of $4817.16 $481.72 Rent (5/2007) $1,583.33 Cam/Taxes/ Insurance (5/2007) $550.00 Chk No. 1041 $3,166.66 May Late Fees, 10% of $3783.83 $378.38 Rent 6 2007 $1,583.33 Cam Taxes Insurance (6/2007) $550.00 Chk No. 1045 $3,166.66 June Late Fees, 10% of $2750.50 $275.05 Rent 7 2007 $1,583.33 Cam/Taxes/ Insurance (7/2007) $550.00 Jul Late Fees, 10% of $4883.83 $488.38 2006 Operating Expense Reconciliation Charge $983.20 Rent (8/2007) $1,583.33 Cam/Taxes/ Insurance (8/2007) $550.00 August Late Fees, 10% of $7017.16 $701.72 Rent (9/2007) $1,583.33 Cam Taxes Insurance (9/2007) $550.00 September Late Fees, 10% of $9150.49 $915.05 Rent 10 2007 $1,583.33 Cam/Taxes/ Insurance (10/2007) $550.00 October Late Fee, 10% of $11283.82 $1,128.38 TOTAL $18,170.57 15. By letter dated September 10, 2007, Pintzuk notified Defendants of Defendants' failure to comply with various provisions of the Lease. Through the letter, Pintzuk further advised Defendants that, unless Defendants made payment in full of the amounts owing under the Lease, Pintzuk would exercise any and all rights and remedies available to the Plaintiffs for non-payment of rent. See a true and correct copy of the September 10, 2007 Letter which is attached hereto, incorporated herein, and marked as Exhibit "D." 16. By letter dated January 15, 2008, Pintzuk notified Defendants of Defendants' failure to comply with various provisions of the Lease. Through the letter, Pintzuk further advised Defendants that, unless Defendants made payment in full of the amounts owing under the Lease, Pintzuk would exercise any and all rights and remedies available to the Plaintiffs for non-payment of rent. See a true and correct copy of the January 15, 2008 Letter which is attached hereto, incorporated herein, and marked as Exhibit "D." 17. As of the date hereof, the Defendants have not cured their default. 18. Under the Lease, the Plaintiffs are empowered to confess judgment against Defendants for all back rent owed. See Exhibit B. 19. Under the Lease, the Plaintiffs are also entitled to recover from the Defendants a "reasonable attorney's commission" of not less than $5,000.00. See Exhibit B. 20. Thus, as of October 31, 2007, the date until which Sisto and Fox personally guaranteed the financial obligations of the Lease, the amounts due and owing by the Defendants to the Plaintiffs under the Lease are as follows: Unpaid Rent $18,170.57 (including Minimum Rent and Additional Rent) Attorneys' Commission $ 5,000.00 **$$23,170.57 **total amount due under the lease as of October 31, 2007 (subject to increase for interest which shall accrue on all delinquent amounts from the date past due until paid at a rate equal to the lower of a rate of one and one-half percent (1- 1/2%) per month or fraction thereof from the date such payment is due until paid (Annual Percentage Rate = 18%), or the highest rate permitted by applicable law.) See Exhibit B. 21. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 22. No judgment has been entered on the Lease in any jurisdiction. 23. The Warrant of Attorney is less than twenty (20) years old. WHEREFORE, Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, hereby demand judgment by confession in the amount of $23,170.57 against Defendants, Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox, as authorized by the warrant of attorney appearing in the attached Lease, together with such other and further relief as the Court may deem proper. FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: 14 - FRANK G. MURP ,ESQUIRE CHRISTINA M. HUGHES, ESQUIRE Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC Dated: ! e/Or VERIFICATION I, Mary Duffy, state that I am authorized to make this Verification on behalf of the Plaintiffs, and that the facts set forth in the preceding Complaint are true and correct to the best of my information and belief. This Verification is made with knowledge of the penalties contained in 18 Pa.C.S.A. §4904, relating to unsworn verification to authorities. By: 77k-? Mary fly, As anager Pintzu Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC Dated: 2. /' of FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. CONFESSION OF JUDGMENT FOR MONEY Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint filed in this action, we appear for the Defendants and confess judgment in favor of the Plaintiffs and against the Defendants as follows: Principal Sum: $18,170.57 Other Authorized Items: $ 5,000.00 (Attorneys' Commission not less than $5,000.00) $23,170.57 By: Judgment Entered As Above okhonotary bi AtOS/0 $ FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. FRANK G. MURF&fY, ESQUIRE CHRISTINA M. HUGHES, ESQUIRE Attorneys for Defendants FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants : ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance for the Defendants, Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox, on whose behalf we confess judgment for money in the sum of $23,170.57. FREY, PETRAKIS, DEEB, BLUM 8v MURPHY, P.C. By: 1?W14ffdek!!!2 Frank G. Mu y, Esquire Christina M. Wughes, Esquire Attorneys for Defendants - iwivl- Dated: FREY, PETRAKIS, DEER, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. ORDER FOR APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance as attorneys for the Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, in the above-entitled matter. Dated: r FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: A%OZ52 FRAN G. MURP , ESQUIRE CHRISTINA M. HUGHES, ESQUIRE Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. CERTIFICATION OF ADDRESSES Christina M. Hughes, Esquire, certifies, to the best of her knowledge, information, and belief, that the addresses of Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, and Pintzuk Brown Realty Group, Agent of Plaintiffs, are 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046; and the last known address of Defendants, Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox, is 1916 County Line Road York Springs, PA 17372. FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: C4?? ?? _ 440 CHRISTINA M. H G S, ESQUIRE Attorney for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC Dated: ?D 0? FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants : AFFIDAVIT STATE OF PENNSYLVANIA SS. COUNTY OF MONTGOMERY Mary Duffy, being duly sworn according to law, deposes and says: that she is an Asset Manager for Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; that the facts set forth in the Complaint in Confession of Judgment are true and correct to the best of her knowledge, information, and belief; and, that the Exhibits attached to the Complaint in Confession of Judgment are true and correct copies of the originals, highlighted for the Court's convenience. Sworn to and Subscribed before me this 1 s day of 08. Notary Public NOTARIAL- SEAL' Public Daniel R. Henderson, Notary county Jenkintown Township, Montgomery My commission expires May 14, 2009 won?A?? ager Mary Dfi(fy, AsjWN Pintzu Brown Re ty Group, Agent of Home Elite Ltd. and P. R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. AFFIDAVIT OF INCOME STATE OF PENNSYLVANIA SS. COUNTY OF MONTGOMERY Mary Duffy, being duly sworn according to law, deposes and says: that she is an Asset Manager of Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; and, that to the best of her knowledge, information, and belief, at the time of the signing of the document containing provision for judgment by confession in the said matter, the income of Defendants, Foxy Fitness, LLC, t/ a Contours Express, Tammy Sisto, and Rebecca Fox, was in excess of $10,000 per year. Sworn to and Subscribed before me this / `t' day of ;R&et,-+ r.y , 2008. ary Pu is NOTARIAL SEAL Daniei R. Henderson, Notary Public Jenkintown Township, Montgomery County My commission expires May 14, 2009 Mary Du , Asset a r Pintzuk rown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA- 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants : AFFIDAVIT OF NONAPPLICABILITY OF GOODS AND SERVICES INSTALLMENT SALES ACT AND AFFIDAVIT OF NON-CONSUMER CREDIT TRANSACTION AND NON-RESIDENTIAL LEASE STATE OF PENNSYLVANIA SS. COUNTY OF MONTGOMERY Mary Duffy, being duly sworn according to law, deposes and says: that she is as Asset Manager for Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; that the Confession of Judgment does not arise out of a retail installment sale, contract, or account, as defined under the Goods and Services Installment Sales Act, 69 P.S. §1101, et seq.; that the Confession of Judgment is not being entered against natural person(s) in connection with a "consumer credit transaction" as that term is defined in Pa.R.C.P. 2950 (as amended); that the Confession of Judgment is not being entered in connection with a residential lease; and, that the foregoing facts are true and correct to the best of her knowledge, information, and belief. Sworn to and Subscribed before me this day of-C`62•+ A 2'1 , 2008. otary Public NOTARIAL SEAL Daniel R. Henderson, Notary Public Jenkintown Township, Montgomery County My commission expires May 14, 2009 Mary D t,'!XCAager Pintuk y Group, Agent of Home Elite Ltd. and P. R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. AFFIDAVIT OF DEFAULT STATE OF PENNSYLVANIA SS. COUNTY OF MONTGOMERY Mary Duffy, being duly sworn according to law, deposes and says: that she is an Asset Manager of Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; that Defendants, Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox, entered into the Lease (as defined in the Complaint in confession of judgment filed in the within action), a true and correct copy of which is attached to the Complaint; that Defendants are in default under the Lease by failing to pay rent owed to Plaintiffs. There is presently $23,170.57 (principal sum plus attorneys' commission) due and owing under the Lease. Sworn to and Subscribed before me this /""' day Zotary .•,?,C , 2008. ub lic NOTARIAL SEAL Daniel R. Henderson, Notary Public Jenkintown Township, Montgomery County My commission expires May 14, 2009 -ell /T ary D , A ager Pintzu rown e Group, Agent of Home E e Ltd. a n d P. R. Real Estate, LLC FREY, PETRAKIS, DEER, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/ a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. AFFIDAVIT OF NON-MILITARY SERVICE STATE OF PENNSYLVANIA SS. COUNTY OF MONTGOMERY Mary Duffy, being duly sworn according to law, deposes and says: that she is an Asset Manager of Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; and, that to the best of her knowledge, information, and belief, the Defendants are not in the Military or Naval Service of the United States, nor any State or Territory hereof or its allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940 and the amendments thereto or the Servicemembers Civil Relief Act. Sworn to and Subscribed before me this /sF day of j-Er,,d ,c,y , 2008. N tary Public NOTARIAL SEAL Daniel R. Henderson, Notary Public Jenkintown Township, Montgomery County My commission expires May 14, 2009 Mary D , A ager Pmtzu rown e Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants PRAECIPE FOR ASSESSMENT OF DAMAGES AND JUDGMENT BY CONFESSION FOR MONEY PURSUANT TO PA.R.C.P. 2951, ET SEQ. TO THE PROTHONOTARY: Pursuant to Pa.R.C.P. 2951 et seq., please assess damages and enter judgment against Defendants, Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox, in favor of Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, in the amount of $23,170.57, as follows: Principal Sum: $18,170.57 Other Authorized Items: $ 5,000.00 (Attorneys' Commission not less than $5.000.00) $23,170.57 Dated: FREY, PETRAKIS, DEEB, BLUM & MURPHY, P. C . By: , FRANK G. M RP ESQUIRE CHRISTINA M. HUGHES, ESQUIRE Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants : AFFIDAVIT OF BUSINESS TRANSACTION STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY SS. Mary Duffy, being duly sworn according to law, deposes and says: that she is an Asset Manager of Pintzuk Brown Realty Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC; that she is authorized to make this affidavit on behalf of Plaintiffs; and, that the transaction upon which Judgment is being entered by Confession was a business and commercial transaction. Sworn to and Subscribed before me this ?0' day of C33/Lvs}?2'a , 2008. otary Public NOTARIAL SEAL Daniel R. Henderson, Notary Public Jenkintown Township, Montgomery County My commission expires May 14, 2009 Mary D , As ger Pintzuk Brown RealtTr Group, Agent of Home Elite Ltd. and P.R. Real Estate, LLC FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Defendants : Notice Under Rule 2958.1 of Judgment and Execution Thereon Notice of Defendants' Rights To: Foxy Fitness, LLC, t/a Contours Express, Tammy Sisto, and Rebecca Fox (Defendants) A judgment in the amount of $23,170.57 has been entered against you and in favor of the Plaintiffs 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 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 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 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 Dated:- 0%4111dr FREY, PETRAKIS, DEEB, BLUM 8v MURPHY, P.C. By: _ &Oh- 144 Frank G. Murphy, quire Christina M. Hughes, Esquire Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. NOTICE UNDER 42 PA. C.S.A. §2737.1 To: FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 A judgment in the amount of $23,170.57 has been entered against you and in favor of the Plaintiffs without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. 42 Pa. C.S.A. § 2737 states in part as follows: A debtor who has been incorrectly identified and had a confession or judgment entered against him may petition the court for costs and reasonable attorney fees as determined by the court. The written instructions regarding the procedure to follow to strike the judgments are not prescribed in detail. For this reason, you should contact an attorney for assistance. However, you are advised that Pa. R.C.P. 2959, provides as follows: Striking Off or Opening Judgment; Pleadings; Procedure (a)(1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has been stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule [of Civil Procedure] 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule [of Civil Procedure] 2956.1(c) (2) or Rule [of Civil Procedure] 2973.1(c), the petition shall be filed within thirty days after such service. Unless the Defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the Plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule [of Civil Procedure] 440. (e) The Court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open judgment. (fl The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. (g)(1) A judgment shall not be stricken or opened because of a creditor's failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor. (2) Subdivision (g) (1) shall apply to (1) judgments entered prior to the effective date of subdivision (g) which have not been stricken or opened as of the effective date and (2) judgments entered on or after the effective date. 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. 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 S. Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 Dated: FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. By: _ 5"'%- ?1 Frank G. Murph squire Christina M. Hughes, Esquire Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC 1601 Market Street, 26th Floor Philadelphia, PA 19103 215) 563-0500 txh?b? ? FREY, PETRAKIS, DEEB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants AFFIDAVIT STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY Attorneys for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. . SS. Scott Homel, being duly sworn according to law, deposes and says that he is authorized to make this affidavit on behalf of Home Elite Ltd. and P.R. Real Estate, LLC and that Pintzuk Brown Realty Group is an authorized agent of and authorized to act on behalf of Home Elite Ltd. and P.R. Real Estate, LLC, as concerns the property owned by Home Elite Ltd. and P.R. Real Estate, LLC as tenants in common at East Gate Plaza, loc im son Ferry Road, Mechanicsburg, PA 17055. Sworn to and Subscribed Signe : before me this I's day of 4 ?y ^, 2008. `Public NOTARIAL SEAL kintown Township, Montgomecommission expires May Scott Homel [Daniel R. Henderson, Notary ]2009 Name: President of Home Elite Ltd. and Tenants in Common Coordinator of Home Elite Ltd. and P.R. Real Estate. LLC Title: Ek.lblq- s BASIC LEASE PROVISIONS The following Basic Lease Provisions embody the agreement of the parties hereto, subject to further terms and conditions set forth elsewhere in this Lease. Should the terms set forth below differ from any term or condition in the Lease, then the Lease shall be deemed controlling. Parties: Landlord: PR REAL ESTATE, LLC & HOME ELITE, LTD. AS TENANTS IN COMMON Tenant: FOXY FITNESS, LLC A CONTOURS EXPRESS FRANCHISEE 1. Leased Premises or Premises: EAST GATE PLAZA MECHANICSBURG, PA SUITE 18 (1) Term: Four (4) Years, Two (2) Months (2) Date for Delivery of Possession: No later than July 30, 2005 (3) Rent Commencement Date: Sixty (60) Days after delivery of possession. (4) Beginning of Term: Delivery of Posession (5) Lease Expiration Date: P60- -Tea-Years after the Rent Commencement Date (6) Lease Year & Base Rent: Lease Year 1 $18,000.00 per year ($1,500.00/mo.) Lease Year 2 $19,000.00 per year ($1,583.33/mo.) Lease Year 3 $20,000.00 per year ($1,666.67/mo.) Lease Year 4 $21,000.00 per year ($1,750.00/mo.) (7) Option Term: Two (2), Three (3) Year Options (8) Option Term Base Rent: First Option Term Year 1 $21,000.00 per year Year 2 $22,000.00 per year Year 3 $23,000.00 per year Second Option Term Year 1 $24,000.00 per year Year 2 $25,000.00 per year Year 3 $26,000.00 per year (9) Gross Square Feet of Lease Template PA ¦ the Leased Premises: 1,900 ± square feet (10) Gross Square Feet of Building(s) in the Center (the "Rentable Area"): 36,000 square feet (11) Tenant's Proportionate Share: 5.278% (12) Additional Rent: Tenants full Proportionate Share: CAM, Taxes, Insurance. Estimated CTI = $550.00 Per Month (13) Tenant's Trade Name: CONTOURS EXPRESS (14) Security Deposit: $1,500.00 (15) Use: Women's Fitness Center (16) Execution Deadline: July 10, 2005 (17) Delivery Condition: As-Is, Where-Is (18) Rent: The Base Rent plus any and all Additional Rent charges under the Lease. (19) Trash Removal: Tenant responsible to supply dumpster for Tenants Trash. (20) Percentage Rent: None (21) Notices: (22) Lease Exhibits: 2 This Agreement is made on JUNE 3 * 2005 BETWEEN PR REAL ESTATE, LLC & HOME ELITE, LTD. AS TENANTS IN COMMON residing or located at c% Pintzuk Brown Realty Group, Inc, 491 Old York Road, Suite 200, Jenkintown, PA 190406 herein designated as the "Landlord," AND FOXY FITNESS, LLC, A CONTOURS EXPRESS FRANCHISEE residing or located at 1916 COUNTY LINE ROAD, YORK SPRINGS, PA 17372 herein designated as the "°Tenant." 1. Leased Premises. The Landlord does hereby lease to the Tenant and the Tenant does hereby rent from the Landlord, the Leased Premises (also know n as the "Premises") as described in the Basic Lease Provisions, supra. 2. Term. The Landlord does hereby lease to the Tenant and the Tenant does hereby rent from the Landlord, the Leased Premises for the Term as described in the Basic Lease Provisions, supra. 3. Use of Premises and Common Areas. Tenant shall in good faith continuously throughout the Term of this Lease conduct and carry on in the entire Premises the type of business described in Article 15 of the Basic Lease Provisions using Tenant's trade name, and the Premises shall not be used for any other purpose. Tenant specifically agrees that its use of the Premises shall never violate any of the restrictions set forth on Exhibit "D" attached hereto. Tenant shall not sell, display or solicit sales in the Common Areas. Tenant shall not use or permit the use of any vending machines or public telephones on, at, or about the Premises without the prior written consent of Landlord. Tenant shall not commit waste, perform any acts or carry on any practices which may injure the Shopping Center or be a nuisance or menace to other tenants in the Shopping Center. Tenant shall operate its business in a dignified manner and in accordance with high standards of store operation so as to maintain a character in keeping with the rest of the Shopping Center, and so as to maximize Tenant's gross sales and shall, at all times when the Premises are open for business with the public, keep the Premises properly equipped with fixtures, stocked with an adequate supply of merchandise and attended by adequate personnel. In the use and occupancy of the Premises and with respect to conditions created at Tenant's request, or as a result of Tenant's performance or breach of any of its obligations hereunder or any fault of Tenant, Tenant shall, at Tenant's expense, comply with all laws and ordinances and all valid rules and regulations and all directives, orders and citations of federal, state, county and municipal authorities having jurisdiction over the Premises, including without limitation the Americans with Disabilities Act and all requirements of any insurance company and any public or private agency having authority over insurance rates. 4. Rent. The Tenant agrees to pay Rent and Additional Rent to Landlord per the schedule shown in Ar6de 6 and 12 of the Basic Lease Provisions, supra. Rent is due on the first day of each month. The first payment of Base Rent, Additional Rent, and Security Deposit are due upon the signing of the Lease by the Tenant. The Tenant must pay a late charge of ten percent as additional rent for each payment that is more than 10 days late. This late charge is due with the monthly rent payment. The Tenant must also pay a fee of $50.00 as additional rent for any dishonored check. 5. Late Charge_ Other remedies for non-payment of Rent notwithstanding, if any monthly installment of Rent or percentage rent or Additional Rent is n6t received by Landlord on or before the date due, or if any payment due Landlord by Tenant which does not have a scheduled due date is not received by Landlord on or before the tenth (10th) day following the date Tenant's rent was due therefore, a late charge of ten percent (10%) of such past due amount shall be immediately due and payable as Additional Rent hereunder and interest shall accrue on all delinquent amounts from the date past due until paid at the lower of a rate of one and one-half percent (1-1/2%) per month or fraction thereof from the date such payment is due until paid (Annual Percentage Rate = 18%), or the highest rate permitted by applicable law. 6. Partial Payment. No payment by Tenant or acceptance by Landlord of an amount less than the Rent herein stipulated shall be deemed a waiver of any other Rent due. No partial payment or endorsement on any check or any letter accompanying such payment of Rent shall be deemed an accord and satisfaction, but Landlord may accept such payment without prejudice to Landlord's right to collect the balance of any Rent due under the terms of this Lease or any late charge assessed against Tenant hereunder. 7. Repairs/Alterations.The Tenant has examined the Leased Premises and has entered into this Lease without any representation on the part of the Landlord as to the condition thereof. (a) Repairs By Landlord. Landlord shall keep the foundation, the roof and the exterior walls of the Premises (except plate glass, doors, door closures, door frames, store fronts, windows and window frames located in exterior building walls) in good repair, and Tenant shall pay, as additional rent, the cost of any such repairs occasioned by the act or neglect of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, and the cost to repair any damage caused by or as a result of Tenant's occupancy of Premises, or any damage caused by break-in, burglary, or other similar acts in or to the Premises, within ten (10) days after demand for payment by Landlord. In the event that the Premises should become in need of repairs required to be made by Landlord hereunder, Tenant shall give immediate written notice thereof to Landlord, and Landlord shall not be responsible in any way for failure to make any such repairs until a reasonable time shall have elapsed after the giving of such written notice. Landlord may elect by giving notice thereof to Tenant, to require Tenant within a reasonable time and at Tenant's expense, to make any repairs that Landlord is required to make at Tenant's expense under this Section, and in such event Tenant shall not be required to pay the cost thereof to Landlord as additional rent. (b) Repairs By Tenant_ Tenant shall, at its sole cost and expense, keep the Premises in a safe,.sightly, and serviceable condition; Tenant shall at its sole cost and expense supply a dumpster for Tenants Trash ; Tenant shall keep the premises free from any infestation by insects, rodents, or other pests, and, except as provided in this Section make all needed maintenance, repairs, and replacements for the proper operation of Tenant's business within the Premises, including all maintenance, repairs, and replacements to: (i) the heating, ventilating, and air conditioning systems serving the Premises; (ii) the 4 exterior and interior portion of all doors, windows, window frames, plate glass, door closures, door frames and store fronts including exterior signage; (iii) all plumbing and sewage facilities within the Premises, including free flow up to the connection to the main sewer line, grease traps, sprinkler systems; (iv) all fixtures within the Premises; (v) all electrical systems serving the Premises (whether or not located within the Premises); (vi) all sprinkler systems serving the Premises; (vii) all interior walls, floors, and ceilings; (viii) any of the Tenant's Work; (ix) all repairs, replacements, or alterations required by any governmental authority; and (x) all necessary repairs and replacements of Tenant's trade fixtures required for the proper conduct and operation of Tenant's business. If at any time and from time to time during the Term, and any extensions and renewals thereof, Tenant shall fail to make any maintenance, repairs, or replacements in and to the Premises as required in this Lease, Landlord shall have the right, but not the obligation, to enter the Premises and to make such maintenance, repairs, and replacements for and on behalf of Tenant, and all sums expended by Landlord for such maintenance, repairs, and replacements shall be deemed to be additional rent hereunder and shall be payable to Landlord upon demand. At the termination of this Lease, Tenant shall surrender the Premises in good condition, reasonable wear and tear and loss by fire or other casualty alone excepted. Tenant shall keep in force a standard maintenance agreement on all heating, ventilating, and air conditioning systems serving the Premises with a reputable heating and air conditioning service organization which shall be subject to Landlord's approval and shall provide a copy of said maintenance agreement to Landlord for its approval. 8. Compliance with )taws etc. The Tenant shall promptly comply with all laws, ordinances, riles, regulations, requirements and directives of the Federal, State and Municipal Govemrrients or Public Authorities and of all their departments, bureaus and subdivisions, applicable to and affecting the said premises, their use and occupancy, (including, without limitation, the Americans with Disabilities Act) for the correction, prevention and abatement of nuisances, violations or other grievances in, upon or connected with the said premises, during the term hereof; and shall promptly comply with all orders, regulations, requirements and directives of the Board of Fire Underwriters or similar authority and of any insurance companies which have issued or are about to issue policies of insurance covering the said premises and its contents, for the prevention of fire or other casualty, damage or injury, at the Tenant's own cost and expense. 9. Assignment. The Tenant shall not assign, mortgage or hypothecate this Lease, nor sublet or sublease the Leased Premises or any part thereof; nor occupy or use the Leased Premises or any part thereof, nor permit or suffer the same to be occupied or used for any purposes other than as herein limited, nor for any purpose deemed unlawful, disreputable, or extra hazardous, on account of fire or other casualty. 10. Destruction or Damage by Casualty. (a) Tenant shall give immediate written notice to Landlord of any damage to the Premises caused by fire or other casualty, and if Landlord does not elect to terminate this Lease as hereinafter provided, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Premises. Notwithstanding the foregoing, in the event that: (i) the insurance proceeds payable in connection with such damage and destruction shall be insufficient to make such restoration, (ii) the building in which the Premises are located shall be destroyed or substantially damaged by casualty not covered by standard fire or extended coverage insurance; (iii) such building shall be destroyed or rendered untenantable by any casualty to the extent of at least fifty percent (50%) of the Rentable Area of such building; (iv) Landlord shall not have actual and unconditional receipt of the insurance proceeds payable in connection with such damage and destruction; (v) the holder of any mortgage, deed to secure debt, deed of trust, or other instrument in the nature thereof which encumbers Landlord's interest hereunder or in the Premises shall require that such proceeds shall be applied against any indebtedness owed to such holder; or (vi) there shall be less than two (2) years remaining in the Term, or any extension or renewal thereof, then, in any of such events, Landlord may elect either to terminate this Lease or to proceed to rebuild and repair the Premises. Landlord shall give written notice to Tenant of such election within ninety (90) days after the occurrence of such casualty. (b) Landlord's obligation to rebuild and repair the Premises under this Section shall in any event be limited to restoring Landlord's work to substantially the condition in which the same existed prior to the casualty, and Tenant agrees that promptly after the completion of such work by Landlord, Tenant will proceed with reasonable diligence and at Tenant's sole cost and expense to restore Tenant's work and all alterations, additions and improvements done by Tenant within the Premises to substantially the condition in which the same existed prior to the casualty. (c) Tenant agrees that during any period of reconstruction or repair of the Premises, it will continue the operation of its business within the Premises to the extent practicable. During the period from the occurrence of a casualty until Landlord's repairs are completed, the Minimum Rent (but not Percentage Rent) shall be reduced and abated in proportion to the amount of Rentable Area of the Premises which is rendered untenantable as a result of such casualty; provided, however, that if such damage or destruction is caused by the intentional or negligent acts or omissions of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, then, and in that event, the Minimum Rent shall not abate. Tenant shall not be entitled to and hereby waives, releases, and relinquishes any and all claims against Landlord for any compensation or damage for loss of use of all or any part of the premises or for anv inconvenience or annoyance occasioned by any such damage, destruction, repair, or restoration of the Premises. (d) Tenant agrees at all times at its expense to keep its merchandise, fixtures, Tenant's Work, all alterations, additions and improvements done by Tenant within the Premises and Tenant's other property situated within its Premises insured by "All Risk" insurance in an amount equal to its full replacement value. Such insurance shall be carried with companies reasonably satisfactory to Landlord. Such insurance shall be non-cancelable and non-amendable except after ten (10) days written notice to Landlord. Such policies or duly executed certificates of insurance with respect thereto shall be delivered to Landlord, together with evidence of payment of the premium therefore, prior to the Rent Commencement Date and renewals thereof as required shall be delivered to Landlord at least thirty (30) days prior to the expiration of the respective policy terms. The proceeds of such insurance shall be payable to Landlord and Tenant, jointly, for use by Tenant only, except with the consent of Landlord, for the repair or replacement of merchandise, fixtures, Tenant's Work, or other property which was situated within the Premises. (e) In the event that fifty percent (50%) or more of the Rentable Area of the Shopping Center shall be destroyed or substantially damaged by any casualty, notwithstanding that the Premises may be unaffected by such casualty, Landlord may terminate this Lease by giving the Tenant thirty (30) days prior written notice of Landlord's election to do so, which notice shall be given, if at all, within ninety (90) days following the date of such occurrence. Rent shall be adjusted as of the date of such termination. 11. Damage or Theft of Personal Property. All personal property brought into the Premises shall be at the risk of the Tenant only and Landlord shall not be liable for theft thereof or any damage thereto occasioned by any acts of co-tenants, or other occupants of the Building, or any other person, except, with V respect to damage to the Premises, as may be occasioned by the grossly negligent or willful act of the Landlord, its employees and agents. 12. "As Is" The Tenant has inspected the Leased Premises and agrees that the Leased Premises is in satisfactory condition. The Tenant accepts the Leased Premises "as is" Notwithstanding the above, Landlord shall erect, at it's own expense a demising wall between suites 18 & 19 which will be delivered in paint ready condition. The Landlord. shall also, at its own expense, remove the middle wall/partition located in the Leased Premises. 13. Alterations and/or improvements. No alterations, additions or improvements shall be made, and no climate regulating, air conditioning, cooling, heating or sprinkler systems, television or radio antennas, heavy equipment, apparatus and fixtures, shall be installed in or attached to the Leased Premises, without the written consent of the Landlord. Unless otherwise provided herein, all such alterations, additions or improvements and systems, when made, installed in or attached to the said premises, shall belong to and become the property of the Landlord and shall be surrendered with the Leased Premises and as part thereof upon the expiration or sooner termination of this lease, without hindrance, molestation or injury. If Landlord gives its written consent to any such alterations, additions or improvements and systems, all work and improvements shall be performed by Tenant in accordance with applicable local, state and federal laws, including obtaining permits and a certificate of occupancy for the work and improvements. 14. Inspection and Repair. The Tenant agrees that the Landlord and the Landlord's agents, employees or other representatives, shall have the right to enter into and upon the said premises or any part thereof, at all reasonable hours, for the purpose of examining the same or making such repairs or alterations therein as may be necessary for the safety and preservation thereof. This clause shall not be deemed to be a covenant by the Landlord nor be construed to create an obligation on the part of the Landlord to make such inspection or repairs. 15. Right to Exhibit The Tenant agrees to permit the Landlord and the Landlord's agents, employees or other representatives to show the Leased Premises to persons wishing to rent or purchase the same, and Tenant agrees that on and after 180 days next preceding the expiration of the term hereof, the Landlord or the Landlord's agents, employees or other representatives shall have the right to place notices on the front of said premises or any part thereof, offering the Leased Premises for rent or for sale; and the Tenant hereby agrees to permit the same to remain thereon without hindrance or molestation. 16. Glass, etc. Damage, Repairs. In case of the destruction of or any damage to the glass in the Leased Premises, or the destruction of or damage of any kind whatsoever to the said premises, caused by the carelessness, negligence or improper conduct on the part of the Tenant or the Tenant's agents, employees, guests, licensees, invitees, subtenants, assignees or successors, the Tenant shall repair the said damage or replace or restore any destroyed parts of the Leased Premises, as speedily as possible, at the Tenant's own cost and expense. 17. Signs. The Tenant shall not place nor allow to be placed any signs of any kind whatsoever, upon, in or about the said premises or any part thereof, except of a design and structure and in or at such places as may be indicated and consented to by the Landlord in writing. In case the Landlord or the Landlord's agents, employees or representatives shall deem it necessary to remove any such signs in order to paint or make any repairs, alterations or improvements in or upon said premises or any part thereof, they may be so removed, but shall be replaced at the Landlord's expense when the said repairs, alterations or improvements shall have been completed. Any signs permitted by the Landlord shall at all times conform with all municipal ordinances or other laws and regulations applicable thereto. 18. Non-Lability of Landlord. The Landlord shall not be liable for any damages or injury which may be sustained by the Tenant or any other person, as a consequence of the failure, breakage, leakage or obstruction of the water, plumbing, steam, sewer, waste or soil pipes, roof, drains, leaders, gutters, valleys, down-spouts or the like or of the electrical, gas, power, conveyor, refrigeration, sprinkler, air-conditioning or heating systems, elevators or hoisting 7 equipment; or by reason of the elements; or resulting from the carelessness, negligence or improper conduct on the part of any other Tenant or this or any other Tenant's agents, employees, guests, licensees, invitees, subtenants, assignees or successors; or attributable to any interference with, interruption of or failure, beyond the control of the Landlord, of any services to be furnished or supplied by the Landlord. 19. Mortgage Priority. (a) Tenant agrees that this Lease shall be subject and subordinate: (i) to any mortgage, deed of trust or other security interest now encumbering the Shopping Center and to all advances which may be hereafter made, to the full extent of all debts and charges secured thereby and to all renewals or extensions of any part thereof, and to any mortgage, deed of trust or other security interest which any owner of the Shopping Center may hereafter, at any time, elect to place on the Shopping Center; (ii) to any assignment of Landlord's interest in the leases and rents from the Shopping Center which includes the Lease which now exists or which any owner of the Shopping Center may hereafter, at any time, elect to place on the Shopping Center; and (iii) to any Uniform Commercial Code Financing Statement covering the personal property rights of Landlord or any owner of the Shopping Center which now exists or any owner of the Shopping Center may hereafter, at any time, elect to place on the foregoing personal property (all of the foregoing instruments set forth in (i), (ii) and (iii) above being hereafter collectively referred to as "Security Documents"). Tenant agrees upon request of the holder of any Security Documents ("Holder") to hereafter execute any documents which the counsel for Landlord or Holder may reasonably deem necessary to evidence the subordination of the Lease to the Security Documents. Within ten (10) days after request therefore, if Tenant fails to execute any such requested documents, Landlord or Holder is hereby empowered to execute such documents in the name of Tenant evidencing such subordination, as the act and deed of Tenant, and this authority is hereby declared to be coupled with an interest and not revocable. (b) In the event of a foreclosure pursuant to any Security Documents, Tenant shall at the election of the Landlord, thereafter remain bound pursuant to the terms of this Lease as if a new and identical Lease between the purchaser at such foreclosure ("Purchaser"), as landlord, and Tenant, as tenant, had been entered into for the remainder of the Term hereof and Tenant shall attorn to the Purchaser upon such foreclosure sale and shall recognize such Purchaser as the Landlord under the Lease. Such attornment shall be effective and self-operative without the execution of any further instrument on the part of any of the parties hereto. Tenant agrees, however, to execute and deliver at any time and from time to time, upon the request of Landlord or of Holder, any instrument or certificate that may be necessary or appropriate in any such foreclosure proceeding or otherwise to evidence such attornment. (c) If the Holder of any Security Document or the Purchaser upon the foreclosure of any of the Security Documents shall succeed to the interest of Landlord under the Lease, such Holder or Purchaser shall have the same remedies, by entry, action or otherwise for the non-performance of any agreement contained in the Lease, for the recovery of Rent or for any other. default or event of default hereunder that Landlord had or would have had if any such Holder or Purchaser had not succeeded to the interest of Landlord. Any such Holder or Purchaser which succeeds to the interest of Landlord hereunder, shall not be: (a) liable for any act or omission of any prior Landlord (including Landlord) unless such act or omission is of a continuing nature; or (b) subject to any offsets or defenses which Tenant might have against any prior Landlord (including Landlord); or (c) bound by any Rent which Tenant might have paid for more than the current month to any prior Landlord (including Landlord); or (d) bound by any amendment or modification of the Lease made without its consent. (d) Notwithstanding anything to the contrary set forth in this Section, the Holder of any Security Documents shall have the right, at any time, to elect to make this Lease superior and prior to its Security Document. No documentation, other than written notice to Tenant, shall be required to evidence that the Lease has been made superior and prior to such Security Documents, but Tenant hereby agrees to execute any documents reasonably requested by Landlord or Holder to acknowledge that the Lease has been made superior and prior to the Security Documents. 20. Security. The Tenant has this day deposited with the Landlord the sum as shown in Article 14 of the Basic Lease Provisions as security for the payment of the rent hereunder and the full and faithful performance by the Tenant of the covenants and conditions on the part of the Tenant to be performed. Said sum shall be returned to the Tenant, without interest, after the expiration of the term hereof, provided that the Tenant has fully and faithfully performed all such covenants and conditions and is not in arrears in rent. During the term hereof, the Landlord may, if the Landlord so elects, have recourse to such security, to make good any default by the Tenant, in which event the Tenant shall, on demand, promptly restore said security to its original amount. Liability to repay said security to the Tenant shall run with the reversion and title to said premises, whether any change in ownership thereof be by voluntary alienation or as the result of judicial sale, foreclosure or other proceedings, or the exercise of a right of taking or entry by any mortgagee. The Landlord shall assign or transfer said security, for the benefit of the Tenant, to any subsequent owner or holder of the reversion or title to said premises, in which case the assignee shall become liable for the repayment thereof as herein provided, and the assignor shall be deemed to be released by the Tenant from all liability to return such security. This provision shall be applicable to every alienation or change in tide and shall in no wise be deemed to permit the Landlord to retain the security after termination of the Landlord's ownership of the reversion or title. The Tenant shall not mortgage, encumber or assign said security without the written consent of the Landlord. 21. Increase of Insurance Rates. If for any reason it shall be impossible to obtain fire and other hazard insurance on the buildings and improvements on the Leased Premises, at standard rates and in the form and in insurance companies reasonably acceptable to the Landlord, the Landlord may, if the Landlord so elects at any time thereafter, terminate this lease and the term hereof, upon giving to the Tenant fifteen days notice in writing of the Landlord's intention so to do, and upon the giving of such notice, this lease and the term thereof shall terminate. If by any reason of the use to which the Leased Premises are . put by the Tenant or character of or the manner in which the Tenant's business is carried on, the insurance rates for fire and other hazards shall be increased, the Tenant shall upon demand, pay to the Landlord, as rent, the amounts by which the premiums for such insurance are increased. Such payment shall be paid with the next installment of rent but in no case later than one month after such demand, whichever occurs sooner. 22.. U4ilities. The Tenant shall pay when due all the rents or charges for water, sewer, gas and electricity used by the Tenant, which are or may be assessed or imposed upon the Leased Premises or which are or may be charged to the Landlord by the suppliers thereof during the term hereof, and if not paid, such rents or charges shall be added to and become payable as additional rent with the installment of rent next due or within 30 days of demand therefor, whichever occurs sooner. Tenant shall contract Directly with the electrical and gas supplier for these utililities. Tenant shall arrange and pay for all utilities and services required in the Leased Premises, including but not limited to, (a) electric, (b) heat, (c) gas, (d) water and (e) sewer services. Landlord shall not be responsible for interruption or impairment of service or utility. 9 23. Condemnation & Eminent Domain. If the land and premises leased herein, or of which the Leased Premises are a part, or any portion thereof, shall be taken under eminent domain or condemnation proceedings, or if suit or other action shall be instituted for the taking or condemnation thereof, or if in lieu of any fom-W condemnation proceedings or actions, the Landlord shall grant an option to purchase and or shall sell and convey the said premises or any portion thereof, to the govemmental or other public authority, agency, body or public utility, seeking to take said land and Leased Premises or any portion thereof, then this lease, at the option of the Landlord, shall terminate, and the term hereof shall end as of such date as the Landlord shall fix by notice in writing; and the Tenant shall have no claim or right to claim or be entitled to any portion of any amount which may be awarded as damages or paid as the result of such condennnation proceedings or paid as the purchase price for such option, sale or conveyance in lieu of formal condemnation proceedings; and all rights of the Tenant to damages, if any, are hereby assigned to the Landlord. The Tenant agrees to execute and deliver any instruments, at the expense of the Landlord, as may be deemed necessary or required to expedite any condemnation proceedings or to effectuate a proper transfer of title to such governmental or other public authority, agency, body or public utility seeking to take or acquire the said lands and Leased Premises or any portion thereof. The Tenant covenants and agrees to vacate the said premises, remove all the Tenant's personal property therefrom and deliver up peaceable possession thereof to the Landlord or to such other party designated by the Landlord in the aforementioned notice. Failure by the Tenant to comply with any provisions in this clause shall subject the Tenant to such costs, expenses, damages and losses as the Landlord may incur by reason of the Tenant's breach hereof. 24. Abandonment of Premises. Tenant agrees not to abandon or vacate the Premises during the Term of this Lease. If Tenant does abandon or vacate the Premises for more than ninety (90) days, Landlord may terminate this Lease, by written notice to Tenant at any time prior to Tenant reoccupying the Premises, but such termination shall not entitle Landlord to pursue any other remedies unless an uncured Default then exists, in which case Landlord may pursue any and all remedies provided by this Lease, at law or in equity. 25. Default. If Tenant shall default in the payment of Rent, Additional Rent, Percentage Rent or any Sum due; herein reserved when due and fails to cure such default within ten (10) days after written notice of such default is given to Tenant by Landlord; or if Tenant shall be in default in performing any of the terms or provisions of this Lease other than the provisions requiring the payment of Rent, and fails to cure such non-monetary default within thirty (30) days after written notice of such default is given to Tenant by Landlord, provided however that if such non-monetary default is of such a nature that it cannot through the exercise of diligent and reasonable efforts be cured within thirty (30) days, then Tenant shall not be in default in such instance if Tenant promptly commences and.diligently pursues the cure of such non-monetary default to completion as soon as possible and in all events within ninety (90) days after such initial notice; or if Tenant is adjudicated a bankrupt; or if a permanent receiver is appointed for Tenant's property and such receiver is not removed within sixty (60) days after appointment thereof; or if, whether voluntarily or involuntarily, Tenant takes advantage of any debtor relief proceedings under any present or future laws, whereby the Rent or any part thereof, is, or is proposed to be, reduced or payment thereof deferred; or if Tenant's effects should be levied upon or attached and such levy or attachment is not satisfied or dissolved within thirty (30) days after such levy or attachment; or, if Tenant is an individual, in the event of the death of the individual and the failure of the executor, administrator or personal representative of the estate of the deceased individual to have assigned the Lease within three (3) months after such death to an assignee approved by Landlord; then, and in any of such events, Landlord, at its option, may exercise any or all of the remedies set forth in this Lease. 10 26. Remedies Upon Tenant's Default If there should occur any default on the part of the Tenant in the performance of any conditions and covenants herein contained, or if during the term hereof the Leased Premises or any part thereof shall be or become abandoned or deserted, vacated or vacant, or should the Tenant be evicted by summary proceedings or otherwise, the Landlord, in addition to any other remedies herein contained or as may be perntitted by law, may either by force or otherwise, without being liable for prosecution therefor, or for damages, re-enter the said premises and the same have and again possess and enjoy; and as agent for the Tenant or otherwise, re-let the Leased Premises and receive the rents therefor and apply the same, fast to the payment of such expenses, reasonable attorney fees and costs, as the Landlord may have been put to in re-entering and repossessing the same and in making such repairs and alterations as may be necessary; and second to the payment of the rents due hereunder. The Tenant shall remain liable for such rents as may be in arrears and also the rents as may accrue subsequent to the re-entry by the Landlord, to the extent of the difference between the rents reserved hereunder and the rents, if any, received by the Landlord during the remainder of the unexpired term hereof, after deducting the aforementioned expenses, fees and costs; the same to be paid as such deficiencies arise and are ascertained each month. 27. Termination on Default Upon the occurrence of any of the contingencies set forth in the preceding clause, or should the Tenant be adjudicated as bankrupt, insolvent or placed in receivership, or should proceedings be instituted by or against the Tenant for bankruptcy, insolvency, receivership, agreement or composition or assignment for the benefit of creditors, or if this lease or the estate of the Tenant hereunder shall pass to another by virtue of any court proceedings, writ of execution, levy, sale, or by operation of law, the Landlord may, if the Landlord so elects, at any time thereafter, terminate this lease and the term hereof, upon giving to the Tenant or to any trustee, receiver, assignee or other person in charge of or acting as custodian of the assets or property of the Tenant, five days notice in writing, of the Landlord's intention so to do. Upon the giving of such notice, this lease and the term hereof shall end on the date fixed in such notice as if the said date was the date originally fixed in this lease for the expiration hereof, and the Landlord shall have the right to remove all persons, goods, fixtures and chattels therefrom, by force or otherwise, without liability for damages. 28. Removal of Tenant's Property. Any equipment, fixtures, goods or other property of the Tenant, not removed by the Tenant upon the termination of this lease, or upon any quitting, vacating or abandonment of the Leased Premises by the Tenant, or upon the Tenant's eviction, shall be considered as abandoned and the Landlord shall have the right, without any notice to the Tenant, to sell or otherwise dispose of the same, at the expense of the Tenant, and shall not be accountable to the Tenant for any part of the proceeds of such sale, if any. 29. Reimbursement of ]Landlord. If the Tenant shall fail or refuse to comply with and perform any conditions and covenants of the within lease, the Landlord may, if the Landlord so elects, carry out and perform such conditions and covenants, at the cost and expense of the Tenant, and the said cost and expense shall be payable on demand, or at the option of the Landlord shall be added to the installment of rent due immediately thereafter but in no case later than one month after such demand, whichever occurs sooner, and shall be due and payable as such. This remedy shall be in addition to such other remedies as the Landlord may have hereunder by reason of the breach by the Tenant of any of the covenants and conditions in this lease contained 30. Non-Performance by Landlord. This lease and the obligation of the Tenant to pay the rent hereunder and to comply with the covenants and conditions hereof, shall not be affected, curtailed, impaired or excused because of the Landlord's inability to supply any service or material called for herein, by reason of any rule, order, regulation or preemption by any governmental entity, authority, department, agency or subdivision or for any delay which may arise by reason of negotiations for the adjustment of any fire or other casualty loss or because of strikes or other labor trouble or for any cause beyond the control of the Landlord. 11 31. Validity of Lease.The terms, conditions, covenants and provisions of this lease shall be deemed to be severable. If any clause or provision herein contained shall be adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it shall not affect the validity of any other clause or provision herein, but such other clauses or provision shall remain in full force and effect. 32. Non-Waiver by Landlord. The various rights, remedies, options and elections of the Landlord, expressed herein, are cumulative, and the failure of the Landlord to enforce strict performance by the Tenant of the conditions and covenants of this lease or to exercise any election or option or to resort or have recourse to any remedy herein conferried or the acceptance by the Landlord of any installment of rent after any breach by the Tenant, in any one or more instances, shall not be construed or deemed to be a waiver or a relinquishment for the fixture by the Landlord of any such conditions and covenants, options, elections or remedies, but he same shall continue in full force and effect. 33. Notices. All notices required under the terms of this lease shall be given and shall be complete by mailing such notices by certified or registered mail, return receipt requested, to the address of the parties as shown at the head of this lease, or to such other address as may be designated in writing, which notice of change of address shall be given in the same manner. 34. Title and Quiet Enjoyment. The Landlord covenants and represents that the Landlord is the owner of the Leased Premises herein leased and has the right and authority to enter into, execute and deliver this lease; and does further covenant that the Tenant on paying the rent and performing the conditions and covenants herein contained, shall and may peaceably and quietly have, hold and enjoy the Leased Premises for the term aforementioned. Landlord shall not be responsible for the acts or omissions of any other tenant or third party that may interfere with Tenant's use and enjoyment of the Premises. 35. Force MMajeure. In the event of a strike, lockout, labor trouble, civil commotion, an act of God, or any other event beyond Landlord's control (a "force majeure event") which results in the Landlord being unable to timely perform its obligations hereunder to repair the Premises, provide services, or complete Work (as provided in Exhibit "B"), so long as Landlord diligently proceeds to perform such obligations after the end of such force majeure event, Landlord shall not be in breach hereunder, this Lease shall not terminate, and Tenant's obligation to pay any Minimum Rent, additional rent, or any other charges and sums due and payable shall not be excused. 36. Entire Contract.This lease contains the entire contract between the parties. No representative, agent or employee of the Landlord has been authorized to make any representations or promises with reference to the within letting or to vary, alter or modify the terms hereof. No additions, changes or modifications, renewals or extensions hereof, shall be binding unless reduced to writing and signed by the Landlord and the Tenant. 37.. Conformity with Laws and Regulations. The Landlord may pursue the relief or remedy sought in any invalid clause, by conforming the said clause with the provisions of the statutes or the regulations of any governmental agency in such case made and provided as if the particular provisions of the applicable statutes or regulations were set forth herein at length. A Number and Gender. In all references herein to any parties, persons, entities or corporations the use of any particular gender or the plural or singular number is intended to include the appropriate gender or number as the text of the within instrument may require. All the temms, covenants and conditions herein contained shall be for and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs, executors, administrators, personal or legal representatives, successors and assigns. 12 39. Brokers. Tenant warrants that it has had no dealings with any real estate broker or agents other than The Pintzuk Brown Realty Group and Campbell Commercial Real Estate in connection with the negotiation of this Lease, and it knows of no real estate broker or agent who is entitled to a commission in connection with this Lease. Tenant shall indemnify and defend Landlord against any costs, claims and expenses, including reasonable attorneys' fees, arising out of Tenant's breach of any representa- tion or agreement contained in this paragraph. 40. Additional Rent. Tenant agrees to pay as further additional rent, as hereinafter provided, Tenant's Share of expenses incurred by Landlord at its discretion for the operation, management and maintenance of the Common Areas of the Shopping Center as constituted from time to time (hereinafter called the "Common Area Expenses"). As used herein, the term "Common Areas" shall mean those areas of the Shopping Center, including all parking areas, which are from time to time open for joint use by the tenants of Shopping Center or by the public, including driveways, truckways, delivery passages, walkways, concourses, malls, planted areas, landscaped areas, and public restrooms and common truck loading and receiving areas which are not leased to or reserved for individual tenants. Common Area Expenses shall include without limitation management fees paid to a management company, expenses reimbursable to a management company, costs incurred for lighting, heating, air conditioning, painting, cleaning, removal of trash, garbage, debris and other refuse, central trash disposal (if Landlord elects to provide same), traffic control, fire protection, sewer, or septic system, compliance with governmental and other regulatory authority applicable to the Shopping Center, policing, inspecting, landscaping and repairing and replacing the Common Areas, or any part thereof, Landlord's share of costs incurred in the maintenance and repair of any offsite retention/detention facilities serving the Shopping Center and any offsite accessways burdened by an easement benefiting the Shopping Center, depreciation of maintenance equipment, costs of all insurance, including any hazard, public liability and property damage insurance, and business interruption or rent insurance, as Landlord shall reasonably deem appropriate with respect to the Shopping Center, including appraisals and consultants' fees and premiums in connection with such insurance and deductible amounts paid in connection with any insurance claim, costs of all water consumed in the Shopping Center which is not separately metered to tenants (single or multiple), and an administrative fee of fifteen percent (15%) of the foregoing costs, but excluding depreciation of Landlord's original investment in the Shopping Center. All capital expenditures included in operating costs (including, but not limited to, the replacement of the roof and resurfacing the parking areas) shall be treated as if said expenditures have been capitalized over their useful life, and Tenant's Share shall in no event include the cost of initial construction or expansion of the Shopping Center and the common areas. Tenant's Share to be paid by Tenant with respect to Common Area Expenses shall be that percentage of the cost of operation and maintenance of the Common Areas which the Rentable Area of the Premises bears to the Rentable Area of the Shopping Center, unless the Shopping Center or any facility serving the Shopping Center is operated, managed or maintained in common with other property or serves additional property, in which event Tenant's Share may be that percentage of a common cost which the Rentable Area of the Premises bears to the Rentable Area of the property under common operation, management, maintenance or served by the facility. Landlord may at its option make monthly or other periodic charges based upon the estimated annual cost of operation and maintenance of the Common Areas, payable in advance but subject to adjustment after the end of each calendar year on the basis of the actual costs for such year. Within ninety (90) days after the close of each calendar year, upon written request from Tenant, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting 13 practices and to include Tenant's proportionate share of the expenses relating to the Common Areas computed as herein provided. Tenant shall be liable for and shall pay all taxes levied against personal property, fixtures, and Tenant's Work in the Premises as additional rent; if such taxes for which Tenant is liable are levied against Landlord or Landlord's property and if Landlord elects to pay the same or if the assessed value of Landlord's property is increased by inclusion of any such items and Landlord elects to pay the taxes based on such increase, Tenant shall pay to Landlord upon demand, as additional rent, that part of such taxes for which Tenant is liable hereunder. Tenant further agrees to pay as additional rent, Tenant's Share of the general real estate taxes, tax consultant fees, assessments, and governmental charges levied against Shopping Center for each calendar year beginning with the Rent Commencement Date and during the Lease Term and any renewals or extensions thereof, together with Tenant's Share of the reasonable cost of any contest of such taxes, assessments and charges or the assessed valuation of the Shopping Center that Landlord may pursue in its reasonable discretion, including fees and disbursements of attorneys, tax consultants, arbitrators, appraisers, experts and other witnesses (hereinafter called the "Taxes"). The Taxes shall be appropriately prorated during the first and last years of the Lease Term if such years are less than full calendar years. "Tenant's Share" shall be that percentage which the Rentable Area of the Premises bears to the Rentable Area of the Shopping Center. Landlord may at its option make monthly or other periodic charges based upon the estimated annual taxes, payable in advance but subject to adjustment after receipt of the tax statement by Landlord. Tenant agrees to pay as additional rent any rent tax or other tax imposed upon rent payments or imposed upon Landlord based upon rent payments by Tenant to Landlord, however Tenant shall not be required to pay any income tax of Landlord. In the event that a merchants association is formed for the Shopping Center, Tenant agrees that it will join and maintain membership in such association. The objectives of such association shall be to advance the civic, social, commercial and economic welfare of its members and the general interest of the Shopping Center and its trade area. Tenant will pay such dues and assessments as may be fixed and determined from time to time by such association. Tenant shall also comply with such other by-laws, rules, and regulations as may be adopted from time to time by such association, and shall take such actions as may be necessary to remain in good standing in such association and shall cooperate in all of the activities of such association. 41. Insurance. (a) Tenant shall keep in force throughout the Term: (a) a Commercial General Liability insurance policy or policies to protect Landlord against any liability to the public or to any invitee of Tenant incidental to the use of or resulting from any accident occurring in or upon the Leased Premises with a limit of not less than $1,000,000.00 per occurrence and not less than $2,000,000.00 in the annual aggregate, or such larger amount as Landlord may prudently require from time to time, covering bodily injury and property damage liability and $1,000,000.00 products/completed operations aggregate; (b) Business Auto Liability covering owned, non-owned and hired vehicles with a limit of not less than $1,000,000.00 per accident; (c) insurance protecting against liability under Worker's Compensation Laws with limits at least as required by statute; (d) Employers Liability with limits of $500,000.00 each accident, $500,000.00 disease policy limit, $500,000.00 disease - each employee; (e) All Risk or Special Form coverage protecting Tenant against loss of or damage to Tenant's alterations, additions, 14 improvements, carpeting, floor coverings, panelings, decorations, fixtures, inventory and other business personal property situated in or about the Leased Premises to the full replacement value of the property so insured; and, (f) Business Interruption Insurance with limit of liability representing loss of at least approximately six months of income. (b) Each of the aforesaid policies shall (i) be provided at Tenant's expense; (ii) name the Landlord and Landlord's mortgagee as additional insureds; (iii) be issued by an insurance company with a minimum Best's rating of "A+"; (iv) be with companies authorized to do business in the state where the property is located and (v) provide that said insurance shall not be cancelled unless thirty (30) days prior written notice (ten days for non-payment of premium) shall have been given to Landlord, and said policy or policies or certificates thereof, together with proof of payment, shall be delivered to Landlord by Tenant not less than fifteen (15) days prior to the commencement of the term hereof or the date when Tenant shall enter into possession, whichever is sooner and at least thirty (30) days prior to each renewal of said insurance. (c) So long as their respective insurers so permit, Tenant and Landlord hereby mutually waive their respective rights of recovery against each other for any loss insured by fire, extended coverage, All Risks or other insurance now or hereafter existing for the benefit of the respective party but only to the extent of the net insurance proceeds payable under such policies. Each party shall obtain any special endorsements required by their insurer to evidence compliance with the aforementioned waiver. wTdl. q ?'O?ncatlo.Iwn. ,vandlo.. .,r shall hanll not be liable and Tenant hereby waives all claims against ?`. Y l lYflYYjlf _ Landlord for any damage to any property or any injury to any person in or about the Leased Premises or the Shopping Center by or from any cause whatsoever, except to the extent caused by or arising from the gross negligence or willful misconduct of Landlord or its agents, employees or contractors. Tenant shall protect, indemnify and hold the Landlord entities harmless from and against any and all loss, claims, liability or costs (including court costs and attorney's fees) incurred by reason of (a) any damage to any property or any injury to any person occumng in, on or about the Leased Premises or the Shopping Center to the extent that such injury or damage shall be caused by or arise from any actual or alleged act, neglect, fault, or omission by or of Tenant, its agents, servants, employees, invitees, or visitors to meet any standards imposed by any duty with respect to the injury or damage; (b) the conduct or management of any work or thing whatsoever done by the Tenant in or about the Leased Premises or from transactions of the Tenant concerning the Leased Premises; (c) Tenant's failure to comply with any and all governmental laws, ordinances and regulations applicable to the condition or use of the Leased Premises or its occupancy; (d) any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of the Tenant to be performed pursuant to this Lease, or (e) or for any cause or reason whatsoever arising out of or by reason of the occupancy or business of Tenant. The provisions of this Article shall survive the termination of this Lease with respect to any claim or liability accruing prior to such termination. 43. Construction and Acceptance of Premises. (a) Landlord agrees that Landlord will complete Landlord's Work as defined in Exhibit "B", with such minor variations as Landlord may deem advisable. Tenant acknowledges that neither Landlord nor any of Landlord's agents, employees, representatives, legal representatives or brokers has made any representations or warranties whatsoever as to the suitability of the Premises for the conduct of Tenant's business or for any other purpose, and that neither Landlord nor any of Landlord's agents, employees, representatives, legal representatives or brokers agreed to undertake or cause to be undertaken any alterations or to construct any improvements to the Premises 15 or the Shopping Center except as expressly provided in this Lease. Tenant shall have no right to enter or occupy the Premises until the Possession Turnover. Date identified on Exhibit B attached hereto. If Landlord shall for any reason fail to complete that part of Landlord's Work which is required in the Premises prior to Landlord's Work Scheduled Completion Date, Landlord shall not be deemed to be in default hereunder or otherwise liable in damages to Tenant nor shall the Term or any provision of this Lease be affected. (b) Tenant agrees to submit to Landlord on or before the Plan Delivery Date identified on Exhibit B attached hereto plans and specifications in such detail as Landlord may reasonably request covering Tenant's Work as specified in Exhibit "B", and any other work which Tenant proposes to do in the Premises. Such plans and specifications shall comply with all requirements set forth in Exhibit "B". Tenant shall not commence any work in the Premises until Landlord has approved the plans and specifications therefor in writing, which approval shall not be unreasonably withheld or delayed. (c) Upon the Date for Delivery of Possession, Tenant agrees to accept possession thereof and to proceed with due diligence to perform the work described in such plans and specifications which have been approved by Landlord, and to install its fixtures, furniture, and equipment in the Premises. Any work Tenant does in the Premises causing venting, opening, sealing, waterproofing or any altering of the roof shall be performed by Landlord's roofing contractor at Tenant's expense. By occupying the Premises, Tenant shall be deemed to have acknowledged that the Landlord has complied with all of its covenants and obligations with respect to the construction of the Premises, except for defects in Landlord's Work which are latent at the time the Premises are occupied, which shall in any event be deemed waived by Tenant upon the expiration of one (1) year after the date the Premises are occupied by Tenant. In the event of any dispute concerning work performed or required to be perfonmed in the Premises by Landlord or Tenant, the matter in dispute shall be submitted to Landlord's architect for determination and his certificate with respect thereto shall be binding on Landlord and Tenant. (d) Unless delayed in accordance with the provisions of Section 3(a) above, Tenant agrees to open the Premises to the public for business fully fixtured, stocked and staffed for the Permitted Use described in Article 15 of the Basic Lease Provisions no later than thirty (30) days after the Date for Delivery of Possession 44. Mechanic's Liens. If any mechanic's, construction or other liens shall be created or filed against the Leased Premises by reason of labor performed or materials furnished for Tenant in the erection, construction, completion, alteration, repair or addition to any building or improvement, Tenant shall upon demand, at Tenant's own cost and expense, cause such lien or liens to be satisfied and discharged of record together with any lien claims that may have been filed. Failure to do so shall entitle Landlord to resort to such remedies as are provided herein in the case of any default of this Lease, in addition to such as are permitted by law. 45. Remedies. In case of any default, re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a) all rent and additional rent shall be accelerated and shall become due thereupon and be paid up to the time of such re-entry, dispossess and/or expiration; (b) Landlord may re- let the Leased Premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms, which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent or charge a higher rental than that in this Lease; and/or (c) Tenant or the legal representatives of Tenant shall also pay 16 Landlord as liquidated damages for the failure of Tenant to observe and perform said Tenant's covenants herein contained, any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the subsequent lease or leases of the Leased Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease. The failure of Landlord to re-let the Leased Premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such expenses as Landlord may incur in connection with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage, advertising and for keeping the Leased Premises in good order or for preparing the same for re-letting. Any such liquidated damages shall be paid in monthly installments by Tenant on the rent day specified in this Lease. Landlord, in putting the Leased Premises in good order or preparing the same for re-rental may, at Landlord's option, make such alterations, repairs, replacements, and/or decorations in the Leased Premises as Landlord, in Landlord's sole judgment, considers advisable and necessary for the purpose of re-letting the Leased Premises, and the making of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release Tenant from liability. Landlord shall in no event be liable in any way whatsoever for failure to re- let the Leased Premises, or in the event that the Leased Premises are re-let, for failure to collect the rent thereof under such re-letting, and in no event shall Tenant be entitled to receive any excess, if any, of such net rent collected over the sums payable by Tenant to Landlord hereunder. 46. Delay in Giving Possession. This Section applies if Landlord cannot give possession of the Leased Premises on the beginning date because of the retention of possession by any occupant thereof or for any other reason eXCelnt as herein provided. Landlord shall then have 30 days in which to give possession. If possession is given within that time, Tenant shall accept possession and pay rent and additional rent from that date. The ending date of the term, and the Lease Year, shall not change. If possession is not given within that time, this Lease may be cancelled by either party on notice to the other. 47. Attorney Fees. In the event that Landlord must retain an attorney to collect rent, enforce any provision of this Lease, defend any action brought by or on behalf of Tenant, or regain possession of the Leased Premises, Tenant shall be liable to Landlord for all reasonable costs and attorney fees associated therewith. In case Landlord shall, without fault on its part, be made a party to any litigation commenced by or against Tenant, then Tenant shall pay all costs, expenses and reasonable attorneys' fees incurred or paid by Landlord in connection with such litigation. In the event of any action, suit or proceeding brought by Landlord to enforce any of the covenants and agreements in this Lease, the Landlord shall be entitled to recover from the Tenant of any costs, expenses and reasonable attorneys' fees incurred in connection with such action, suit or proceeding. 48. Waiver. Landlord's failure to enforce any provision in this Lease shall not prevent Landlord from enforcing any provision at a later time. 49. Rules and Regulations.Tenant shall comply with, and cause its employees, agents and invitees to comply with, all reasonable rules and regulations adopted by Landlord in connection with the use of the Leased Premises and the common areas of the property. 50. Hours of Operation/Tenant Retail Operating Covenants. (a) Tenant shall not, nor shall Tenant at any time permit any occupant of the Premises to: (i) conduct or permit any fire, bankruptcy or auction. sale (whether real or fictitious) unless directed by order of a court of bankruptcy or of competent 17 jurisdiction, or conduct or permit any fictitious "Going Out of Business" sale; (ii) use, or permit to be used, the malls or sidewalks adjacent to such Premises, or any other area outside the Premises for the sale or display of any merchandise or for any other business, occupation or undertaking, or for outdoor public meetings, circus or other entertainment (except for promotional activities in cooperation with the management of the Shopping Center or an association of merchants within the Shopping Center); (iii) use or permit to be used, any sound broadcasting or amplifying device which can be heard outside of the Premises; (iv) use or permit to be used any portion of the Premises for any unlawful purpose or use or permit the use of any portion of the Premises as regular living quarters, sleeping apartments or lodging rooms or for the conduct of any manufacturing business; (v) use the Premises for or conduct therein activities, the purpose for which is not included within the purpose for which the Premises may be used according to Article 15 of the Basic Provisions of this Lease; or (vi) use, operate or maintain the Premises in such manner that any of the rates for any insurance carried by Landlord, or the occupant of any premises within the Shopping Center, shall thereby be increased, unless Tenant shall pay to Landlord or such occupant within the Shopping Center, as the case may be, an amount equal to any such increase in rates, such payment to be made promptly on demand as each premium which shall include such increase shall become due and payable. (b) Tenant: (i) will not represent or advertise that it regularly or customarily sells merchandise at "manufacturers", "distributor's", or "wholesale", "warehouse", "fire sale", "bankruptcy sale", or similar prices or other than at retail prices; (ii) will keep all mechanical apparatus free of vibration or noise which may be transmitted beyond the confines of the Premises; (iii) will not cause or permit odors to emarmate from the Premises; 6v) will not load or unload or permit the loading or unloading of merchandise, supplies or other property except within the area designated by Landlord from time to time; and (v) will not permit the parking or standing, outside of such designated area, of trucks, trailers or other vehicles or equipment engaged in such loading or unloading. (c) Tenant: (i) will keep clean the inside and outside of all glass in the doors and windows of the Premises; (ii) will replace promptly at its own expense with glass of like kind and quality any plate or window glass; (iii) will replace doors or door hardware of the Premises which may for any reason become cracked or broken; (iv) will maintain the Premises in a clean, orderly and sanitary condition and free of insects, rodents, vermin, and other pests; (v) will not permit undue accumulation of garbage, trash, rubbish or other refuse in the Premises; and (vi) will keep such refuse in proper containers inside the Premises until such time as same is called for to be removed. Tenant will maintain plate glass insurance reasonably satisfactory to Landlord if any plate glass is contained in the store front of the Premises. (d) Tenant shall keep the Premises open for business with the public during all hours when the Shopping Center generally is open for business with the public. Unless the hours during which Shopping Center shall be open for business with the public shall have been otherwise determined by a merchant's association, if in operation, or Landlord if not, Tenant shall keep the Premises open for business during it's self determined hours of operation. 18 Notwithstanding the provisions of this Section, no Tenant shall be required to keep its Premises open for business at any time prohibited by applicable law, ordinance or governmental regulations, and Tenant shall be permitted to close the Premises during reasonable periods for repairing, cleaning or decorating the Premises, with written permission from Landlord. (e) In the event that at any time during the Term, or any extension or renewal thereof, Tenant should vacate, abandon, or desert the Premises or cease operating the store therein fully fixtured, stocked and staffed for the Permitted Use, then, in any such event, Tenant shall be in default hereunder and Landlord shall have, in addition to all rights and remedies provided under this Lease regarding default, the right to collect not only the Minimum Rent and other rent otherwise provided for herein, but also additional rental at the rate of twice the per diem amount of Minimum Rent otherwise payable hereunder for each and every day that Tenant shall fail to do business within the Premises in accordance with the terms of this Lease; provided, however, that such additional rental shall not accrue during any period when the Premises are rendered untenantable by reason of fire, casualty, or cause beyond Tenant's control and not resulting from the intentional or negligent acts or omissions of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, and the failure to operate Tenant's store during such period shall not be deemed a default hereunder. Said additional rent is intended to contribute to the expense of monitoring the occupancy of the Premises and shall not be deemed a penalty or liquidated damages. 51. Nondisclosure of Lease Terms. Tenant acknowledges and agrees to maintain the confidentiality of the essential business terms of this Lease, and in particular, the financial terms. In no event will Tenant disclose such terms to other tenants or prospective tenants of the center. 52. Waiver of Jury Trial. Landlord and Tenant hereby mutually waive trial by jury in any proceeding concerning this Lease or arising therefrom. 53. Full Execution.This Lease shall not be binding on either party until it is executed by all parties and delivered to all parties. 54. Parking. Intentionally Left Blank 55. Tenant Estoppel Certificate. Tenant agrees to at any time and from time to time, within ten (10) days after Landlord's written request, execute, acknowledge and deliver to Landlord a written instrument certifying the Commencement Date, that Tenant has accepted possession of the Leased Premises and is open for business, that this Lease is unmodified and in full force and effect (or if there have been modifications, that it is in full force and effect as modified and stating the modifications), the dates to which Base Rent, Additional Rent and other charges have been paid in advance, if any, and stating whether or not to the best knowledge of the signer of such certificate, Landlord is in default in the performance of any covenant, agreement or condition contained in this Lease and, if so, specifying in 19 detail each such default of which the signer may or should have knowledge; and certifying such other matters as may be reasonably requested by Landlord. 56. Right to Relocate. As a material inducement for Landlord to enter into this Lease with Tenant, Landlord shall, throughout the Term of this Lease and any renewals thereof, have the right at Landlord's expense to relocate Tenant to other premises (the "New Premises") within the property. In the event Landlord elects to exercise the right of relocation, Landlord shall deliver written notice ("Landlord's Notice") to Tenant identifying the location of the New Premises and the date on which the Tenant shall be moved to the New Premises, which date shall not be less than 30 days from Tenant's receipt of Landlord's Notice. The square footage and frontage of the New Premises shall not be more than fifteen percent (15%) larger nor fifteen percent (15%) smaller than the Leased Premises. In the event that the New Premises do not consist of the identical number of square feet as the Leased Premises, the parties shall execute an instrument specifying the new number of square feet in the New Premises, and the new number of square feet shall be deemed effective as of the date on which the New Premises is delivered to Tenant. All rent shall be adjusted accordingly. 57. Cleaning Premises. Upon vacating the Premises, Tenant agrees to return the Premises to Landlord broom clean and in the same condition when Tenant's possession commenced, natural wear and tear excepted, regardless of whether any Security Deposit has been forfeited. 58. Removal of Fixtures. If Tenant is not in default hereunder, Tenant may, prior to the expiration of the. Terra of this Lease, or any extension thereof, remove any fixtures and equipment which_ Tenant has placed in the Premises which can be removed without significant damage to the Premises, provided Tenant promptly repairs all damages to the Premises caused by such removal. 59. Holding Over. If Tenant shall be in possession of the Leased Premises after the termination date of the Lease, and in the absence of any agreement extending the Term hereof or Landlord's demand to Tenant to sooner vacate the Leased Premises, the tenancy under this Lease shall become one from month to month terminable by either party on thirty (30) days prior written notice, at a monthly rental equal to one and one-half times the sum of (i) the monthly installment of Base Rent payable during the last month of the Term and (ii) the monthly installment of Additional Rent payable during the last month of the Term. Tenant shall also pay all other charges payable under the terms of the Lease, prorated for the period during which Tenant remains in possession. Such tenancy shall also be subject to all other conditions, provisions, and obligations of this Lease. Tenant shall not interpose any counterclaim or counterclaims in a summary proceeding or other action based on holdover. The provisions of this Section shall be in addition to any liability Tenant may have to Landlord in respect of its holdover. 60. Demolition. As a material inducement for Landlord to enter into this Lease with Tenant and to afford Landlord the opportunity to redevelop the Shopping Center in order to maximize its economic potential throughout the Term of this Lease, should Landlord decide to demolish no less than fifty (50) percent of the total gross square footage of all buildings in the Shopping Center, exclusive of space occupied by Anchor Tenants (which term for the purposes if this Paragraph shall mean any tenant(s) in the Shopping Center leasing 15,000 or greater gross square feet), Landlord shall have the absolute right to terminate this Lease upon the giving of six (6) months prior written notice ("Demolition Notice") to Tenant. Should Landlord give the Demolition Notice, the Term of this Lease shall expire and terminate on the date set forth in said Notice as if said date were the expiration date of the Term of this Lease originally provided for in this Lease. 20 61. Liability Of Landlord If Landlord is found to have failed to perform any covenant, term or condition of this Lease, and if Tenant shall recover a money judgment against Landlord for such failure, the judgment shall be satisfied only out of the proceeds of sale received upon execution of the judgment and levy against the right, title and interest of Landlord in the Shopping Center as the same may then be encumbered, and neither Landlord nor any of its partners shall be liable for any deficiency. It is understood that in no event shall Tenant have the right to levy execution against any property of Landlord other than its interest in the Shopping Center. The right of execution shall be subordinate and subject to any mortgage or other encumbrance upon the Shopping Center. No trustee, shareholder, officer, member, director, employee, parent or subsidiary company, Landlord affiliate or partner of Landlord shall in any event or at any time be personally liable for the payment of performance of any obligation required or permitted of Landlord under this Lease or under any document executed in connection herewith. No attachment, execution, writ or other process shall be sought or obtained, and no judicial proceeding shall be initiated by or on behalf of Tenant, against Landlord personally or Landlord's assets (other than Landlord's interest in the Shopping Center) as a result of any such failure, breach or default under this Lease, and neither they, nor Landlord nor any Landlord affiliate, shall be liable for any deficiency. 62. Hazardous Materials/Indemnification. (a) Tenant shall not cause or permit the receipt, storage, use, location or handling in the Shopping Center (including the Premises) of any product, material or merchandise which is explosive, highly inflammable, or a "hazardous or toxic material," as that term is hereafter defined. "Hazardous or toxic material" shall include all materials or substances which have been determined to be hazardous to health or the environment and are regulated or subject to all applicable laws, rules and regulations from time to time, including, without limitation hazardous waste (as defined in the Resource Conservation and Recovery Act); hazardous substances (as defined in the Comprehensive Emergency Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act); gasoline or any other petroleum product or by-product or other hydrocarbon derivative; toxic substances, (as defined by the Toxic Substances Control Act); insecticides, fungicides or rodenticide, (as defined in the Federal Insecticide, Fungicide, and Rodenticide Act); asbestos and radon and substances determined to be hazardous under the Occupational Safety and Health Act or regulations promulgated thereunder. Notwithstanding the foregoing, Tenant shall not be in breach of this provision as a result of the presence in the Premises of minor amounts of hazardous or toxic materials which are in compliance with all applicable laws, ordinances and regulations and are customarily present in a general retail use (e.g., computer chemicals, and janitorial supplies). (b) Without limiting in any way Tenant's obligations under any other provision of this Lease, Tenant and its successors and assigns shall indemnify, protect, defend (with counsel approved by Landlord) and hold Landlord, its partners, officers, directors, shareholders, employees, agents, lenders, contractors and each of their respective successors and assigns (the "Indemnified Parties") harmless from any and all claims, damages, liabilities, losses, costs and expenses of any nature whatsoever, known or unknown, contingent or otherwise (including, without limitation, attorneys' fees, litigation, arbitration and administrative proceedings costs, expert and consultant fees and laboratory costs, as well as damages arising out of the diminution in the value of the Premises or any portion thereof, damages for the loss of the Premises, damages arising from any adverse impact on the marketing of space in the Premises and sums paid in settlement of claims), which arise during or after the Term in whole or in part as a result of the presence or suspected presence of any hazardous or toxic materials, in, on, under, from or about the Premises due to Tenant's acts or omissions, on or about the Premises, unless such claims, damages, liabilities, tosses, costs and expenses arise out of or are caused by the negligence or willful misconduct of 21 any of the Indemnified Parties. Landlord and its successors and assigns shall indemnify and hold Tenant and its successors and assigns harmless against all such claims or damages if arising out of or caused by the negligence or willful misconduct of Landlord, its agents or employees. The indemnities contained herein shall survive the expiration or earlier termination of this Lease. 63. Authority. If Tenant executes this Lease as a corporation, limited partnership, limited liability company or any other type of entity, each of the persons executing this Lease on behalf of Tenant does hereby personally represent and warrant that Tenant is a duly organized and validly existing corporation, limited partnership, limited liability company or other type of entity, that Tenant is qualified to do business in the state where the Building is located, that Tenant has full right, power and authority to enter into this Lease, and that each person signing on behalf of Tenant is authorized to do so. In the event any such representation and warranty is false, all persons who execute this Lease shall be individually, jointly and severally, liable as Tenant. Upon Landlord's request, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord confirming the foregoing representations and warranties. 64. Miscellaneous. No agreement to accept a surrender of the Leased Premises shall be valid unless in writing signed by Landlord. The delivery of keys to any employee of Landlord or of Landlord's agents shall not operate as a termination of this Lease or a surrender of the Leased Prert;icPC. The failure of Landlord to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of this Lease, or of any rule or regulation, shall not prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach. No provision of this Lease shall be deemed to have been waived by Landlord, unless such waiver be in writing and signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check nor any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy provided in this Lease. This Lease contains the entire agreement between the parties, and any agreement hereafter made shall be ineffective to change, modify or discharge it in whole or in part, unless such agreement is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. 65. Governing Law The laws of the State in which the Leased Premises is located shall govern the interpretation, validity, performance and enforcement of this Lease. If any provision of this Lease should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Lease shall not be affected hereby. 66. Sale. In the event the original Landlord hereunder, or any successor owner of the Shopping Center, shall sell or convey the Shopping Center, all liabilities and obligations on the part of the original Landlord, or such successor owner, under this Lease accruing thereafter shall terminate, and thereupon all such liabilities and obligations shall be binding upon the new owner. Tenant agrees to attom to such new owner. 22 67. Limitation of Liability, Landlord's obligations and liability with respect to this Lease shall be limited solely to Landlord's interest in the Shopping Center, as such interest is constituted from time to time, and neither Landlord nor any partner of Landlord, or any officer, director, shareholder, or partner or member of any partner or member of Landlord, shall have any individual or personal liability whatsoever with respect to this Lease. 68. CONFESSION OF JUDGMENT (A) ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD IS HEREBY IRREVOCABLY AUTHORIZED AND EMPOWERED TO APPEAR FOR TENANT IN ANY ACTION TO CONFESS JUDGMENT AGAINST TENANT, AND MAY SIGN FOR TENANT AN AGREEMENT, FOR WHICH THIS LEASE SHALL BE HIS SUFFICIENT WARRANT, FOR ENTERING IN ANY COMPETENT COURT AN ACTION OR ACTIONS IN EJECTMENT, AND IN ANY SUITS OR IN SAID ACTIONS TO CONFESS JUDGMENT AGAINST TENANT AS WELL AS ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE PREMISES. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ANY ONE OR MORE EXERCISES THEREOF, BUT JUDGMENT MAY BE CONFESSED FROM TIME TO TIME AS OFTEN AS ANY EVENT SET FORTH IN THIS LEASE SHALL HAVE OCCURRED OR BE CONTINUING. SUCH POWERS MAY BE EXERCISED DURING AS WELL AS AFTER THE EXPIRATION OR TERMINATION OF THE ORIGINAL TERM AND DURING AND AT ANY TIME AFTER ANY EXTENSION OR RENEWAL OF THE TERM, AND/OR (B) IF TENANT SHALL DEFAULT IN THE PAYMENT OF RENT RESERVED OR PAYABLE HEREUNDER OR IN THE PAYMENT OF ANY OTHER SUMS DUE HEREUNDER BY TENANT, TENANT HEREBY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR TENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR SAID RENT AND SAID OTHER SUMS; AND TO SIGN FOR TENANT AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION OR ACTIONS FOR THE RECOVERY OF SAID RENT AND OTHER SUMS, AND IN SAID SUITS OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST TENANT FOR ALL OR ANY PART OF SAID RENT AND SAID OTHER SUMS, INCLUDING, BUT NOT LIMITED TO, THE AMOUNTS DUE FROM TENANT TO LANDLORD UNDER EACH OF THE SUBSECTIONS OF THIS SECTION AND FOR INTEREST AND COSTS, TOGETHER WITH A REASONABLE ATTORNEY'S COMMISSION FOR COLLECTION OF NOT LESS THAN FIVE THOUSAND DOLLARS ($5,000). SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF SAID RENT AND OTHER SUMS SHALL FALL DUE OR BE IN ARREARS AND SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE TERM OF THIS LEASE, THIS LEASE PROVIDES FOR THE CONFESSION OF JUDGMENT AGAINST TENANT FOR MONEY AND FOR EJECTMENT. IN CONNECTION THEREWITH, TENANT, KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND UPON ADVICE OF SEPARATE COUNSEL, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF 23 PENNSYLVANIA. WITHOUT LIMITATION OF THE FOREGOING, TENANT HEREBY SPECIFICALLY WAIVES ALL RIGHTS TENANT HAS OR MAY HAVE TO NOTICE AND OPPORTUNITY FOR A HEARING PRIOR TO EXECUTION UPON ANY JUDGMENT CONFESSED AGAINST TENANT BY LANDLORD HEREUNDER. TENANT (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF LANDLORD HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LANDLORD WILL NOT SEEK TO EXERCISE OR ENFORCE ITS RIGHTS TO CONFESS JUDGMENT HEREUNDER, AND (II) ACKNOWLEDGES THAT THE EXECUTION OF THIS LEASE BY LANDLORD HAS BEEN MATERIALLY INDUCED BY, AMONG OTHER THINGS, THE INCLUSION IN THIS LEASE OF SAID RIGHTS TO CONFESS JUDGMENT AGAINST TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS SAID PROVISIONS WITH TENANT'S INDEPENDENT LEGAL COUNSEL AND THAT THE MEANING AND EFFECT OF SUCH PROVISIONS HAVE BEEN FULLY EXPLAINED TO TENANT BY SUCH COUNSEL, AND AS EVIDENCE OF SUCH FACT AN AUTHORIZED OFFICER OF TENANT SIGNS HIS OR HER INITIALS IN THE SPACE PROVIDED BELOW. (Initials) v 69. Tenant's Gross Sales/ Sales Reports and Records. Intentionally Left Blank 70. Percentage Rent. Intentionally Left Blank IN WITNESS WHEREOF, the parties hereto are executing this Lease on the date first written above. By signing below, all parties agree to be bound by all terms and conditions set forth in the lease form to which this Addendum is attached. Landlord: Witnessed or Attested By: PR REAL ESTATE, LLC & HOME ELITE, LTjLA&-T°E-NANtS -1N,60? By: Name: Title: ?- Tenants: FOXY FITNESS, LLC A CONTOURS EXPRESS FRANCHISEE By: 24 Name: EXHIBIT "A" PROPERTY [ATTACH SHOPPING CENTER SITE PLAN] 25 EXHIBIT "A- I " PREMISES [ATTACH PLAN SHOWING PREMISES BY DIAGONAL LINES] Error'. Unknown document property name. EXHIBIT "B" INTENTIONALLY LEFT BLANK Error! Unknown document property name. WORK LETTER AGREEMENT B-1 SCHEDULEI Landlord's Work Space to be demised between Suites 18 & 19 and wall shall be paint ready. Also, removal of the middle wall/partition. B-2 Error! Unknown document property name. SCHEDULE 11 Plan Delivery Date: N/A Contractor Selection Date: N/A Possession Turnover Date: NIA Tenant Improvement Allowance: NONE B-3 Error! Unknown document property name. EXHIBIT "C" COMMENCEMENT DATE/ACCEPTANCE LETTER INTENTIONALLY LEFT BLANK C-1 Error! Unknown document property name. PINTZUK BROWN REALTY GROUP VIA US MAIL Tammy Sisto & Rebecca Fox Foxy Fitness, LLC 1916 County Line Road York Springs, PA 17372 RE: Memorandum of Lease Term - Delivery of Possession - East Gate Plaza Tammy and Rebecca: This letter shall serve to memorialize the date which Delivery of Possession for your Leased Premises occurred. Pursuant to your Lease dated June 30, 2005 the date for Delivery of Possession occurred on August 19, 2005. Although the Lease Agreement called for Rent Commencement to occur Sixty (60) Days following Delivery of Possession, the Landlord has agreed to extend the Rent Commencement Date to November 1, 2005. Please acknowledge your acceptance of this letter and return an original signed copy to me at the letterhead address. This letter shall become Exhibit C of your Lease, Please attach it as such. Thank You, 0, ILI R. Christopher Datz, Director of Asset Management Services Acknowledged Foxy Fitness, LLC ° CC-? Tammy Sisto ebecca Fox 491 Old York Road, Suite 200 • Jenkintown, PA 19046 Office: 215-881-8980 Fax: 215-881-8983 • Web: www.pbrginc.com EXHIBIT "D" USE RESTRICTIONS Notwithstanding any other provision of this Lease, and without in any way expanding the use of the Premises permitted hereunder, Tenant acknowledges and agrees that its use of the Premises is subject to and will riot violate the restrictions and exclusives set forth hereirbelow: TENANT SMALL HAVE THE EXCLUSIVE RIGHT TO OPERATE A WOMEN'S FITNESS CENTER. D-1 Error! Unknown document property name. EXHIBIT "E" RULES AND REGULATIONS Rules and Regulations 1. No radio or television or other similar devices shall be installed without first obtaining in each instance Landlord's consent in writing. No aerial shall be erected on the roof or exterior walls of the Leased Premises, or on the grounds, without in each instance, the written consent of Landlord. Any aerial so installed without such written consent shall be subject to removal without notice at any time at Tenant's expense. 2. No loud speakers, televisions, phonographs, radios or other devices shall be used in a manner so as to be heard or seen outside of the Leased Premises without the prior written consent of Landlord. 3. If the Leased Premises are equipped with heating facilities separate from those in the remainder of the Shopping Center, Tenant shall keep the Leased Premises at a temperature sufficiently high to prevent freezing of water in pipes and fixtures. 4. The outside areas immediately adjoining the Leased Premises shall be kept clean and free from snow, lice, dirt and rubbish by Tenant to the. satisfaction of the Landlord, and Tenant shall not place or permit any obstructions or merchandise in such areas. 5 The plumbing facilities shall not be used for any other purpose than that for which they are constructed, and no foreign substance of any kind shall be thrown therein, and the expense of any breakage, stoppage, or damage resulting from a violation of this provision shall be borne by Tenant. 6. Tenant shall not burn any trash or garbage of any kind in or about the Leased Premises, the Shopping Center, or within one mile of the outside property lines of the Shopping Center. 7. All deliveries or shipments of any kind to and from the Leased Premises, including loading of goods, shall be made only by way of the rear of the Leased Premises or at any other location designated by Landlord, and only at such reasonable time designated for such purpose by Landlord. 8. Tenant shall not use the public or common areas in the Shopping Center for business purposes or special events unless prior approval in writing has been granted by the Landlord. 9. Tenant shall use, at Tenant's cost, a pest extermination contractor at such intervals as Landlord may require, but no less often than once annually. 10. Tenant shall not place, or permit, displays, decoration or shopping carts on the sidewalk in front of the Leased Premises or upon any of the common areas of the Shopping Center. 11. Tenant shall not cause or permit any unusual or objectionable odors to be produced upon or within, or released from, the Leased Premises. F-1 Error? Unknown document property name. EXHIBIT T" UTILITIES A) Tenant shall be responsible for their share of water usage and sewer billed on a quarterly or monthly basis and shall contract directly for such service. B) Tenant shall contract directly with the local provider of gas and electric service to the leased premises. F-2 Error! Unknown document property name. EXHIBIT "G" INTENTIONALLY LEFT BLANK Error! Unknown document property name. SIGN CRITERIA G-1 EXHIBIT "H" FORM OF GUARANTY TAMMY SISTO AND REBECCA FOX SHALL PERSONALLY GUARANTEE THE FINANCIAL OBLIGATIONS OF THIS LEASE FOR A PERIOD OF TWO YEARS FROM THE RENT COMMENCEMENT DATE. H-1 Error! Unknown document property name. EXHIBIT "I" STATEILOCAL LAW PROVISIONS ITENTIONALLY LEFT BLANK I-1 Error! Unknown document property name. EXHIBIT "J" SPECIAL STIPULATIONS INTENTIONALLY LEFT BLANK I-2 Error! Unknown document property name. Cxh???" FREY-PETRAKIS 1 DEEB-BLUNI 9- 12,12 1 A T T O R N E Y S AT L A W September 10, 2007 Reply To: PHILADELPHIA Foxy Fitness, LLC, a Contours Express Franchisee 1601 Market Street Ms. Tammy Sisto Ms. Rebecca Fox Suite 2600 Philadelphia, PA 19103 Via Regular and Certified Mail at: (215) 563-0500 5202 Simpson Ferry Road Fax: (215) 563-5532 East Gate Plaza, Suite 18 Mechanicsburg, PA 17050 10 Melrose Avenue and Suite 430 Cherry Hill, NJ 08003 1916 County Line Road York Springs, PA 17372 (856) 216-2322 Fax: (856) 216-2392 Via E-mail at contoursexpress-mechanicsburg@hotmail.com S North Shore Road Marmora, NJ 08223 (609) '90-0127 Fax: (609) 390-0244 www.fpdb.com RE: Pintzuk Brown Realty Group Dear Ms. Sisto and Ms. Fox: My firm has been retained by Pintzuk Brown Realty Group (°Pintzuk") in order to pursue amounts due and owing by you under the terms of your lease with P.R. Real Estate, LLC & Home Elite, Ltd. Under the terms of the lease, you personally guaranteed the financial obligations of the lease for a period of two (2) years from the rent commencement date (November 1, 2005). The financial obligations of the lease as of November 1, 2007 will be $18,070.57. In addition, because Pintzuk has been forced by you to employ our firm, under the terms of the lease, you are obligated to pay for any attorneys' fees and costs Pintzuk incurs in pursuing amounts owed. You have been advised multiple times that you are in default under the terms of the lease. Furthermore, Pintzuk has made multiple Prey Petrakis Deeb Blum & Briggs, PC=. F R E Y PETE' K I S DEER B L U M & BR GS, P.C. Foxy Fitness, LLC, a Contours Express Franchisee Ms. Tammy Sisto Ms. Rebecca Fox September 10, 2007 Page 2 attempts to structure some sort of payment arrangement with you in order to settle the matter without resort to litigation. However, you have failed to make any good faith effort to satisfy the amounts due and owing. I suggest that we explore opportunities to amicably settle this matter. As such, this letter is for the purposes of settlement only, and cannot be used for any other purpose or introduced as evidence in any proceeding. Please contact me at your earliest convenience to discuss your fulfillment of your monetary obligations under the lease in order to settle this matter. Please respond within ten (10) days of the date of this letter so that we can timely move this matter forward. Please be advised that Pintzuk has authorized my firm to pursue, to the fullest extent possible under Pennsylvania law, all amounts due and owing by you. If I do not hear from you within 10 days, my client will have no other choice but to initiate litigation against you and follow all other recourse available to obtain payment. I look forward to hearing from you. Ve truly yours, RISTINA M. H H CMH/smc -T?7x Itbt ID ATTORNEYS AT LAW January 15, 2008 Reply To: PHILADELPHIA Foxy Fitness, LLC, a Contours Express Franchisee 1601 Market Street Ms. Tammy Sisto Suite 2600 Ms. Rebecca Fox Philadelphia, PA 191033 Via Regular and Certified Mail at (215) 563-0500 5202 Simpson Ferry Road Fax: (215) 563-5532 East Gate Plaza, Suite 18 Mechanicsburg, PA 17050 10 Melrose Avenue and Suite 430 Cherry Hill, NJ 08003 1916 County Line Road York Springs, PA 17372 (856) 216-2322 Fax: (856) 216-2392 Via E-mail at contoursexpress-mechanicsburg@hotmail.com 15 North Shore Road RE: Pintzuk Brown Realty Group Marmora, NJ 08223 (609) 390-0127 Dear Ms. Sisto and Ms. Fox: Fax: (609) 390-0244 As I advised in my letter dated September 10, 2007, my firm has been retained by Pintzuk Brown Realty Group ("Pintzuk") in order to wwwf c1b.com pursue amounts due and owing by you under the terms of your lease with P.R. Real Estate, LLC & Home Elite, Ltd. Under the terms of the lease, you personally guaranteed the financial obligations of the lease for a period of two (2) years from the rent commencement date (November 1, 2005). The financial obligations of the lease as of November 1, 2007 are $18,170.57. In addition, because Pintzuk has been forced by you to employ our firm, under the terms of the lease, you are obligated to pay for any attorneys' fees and costs Pintzuk incurs in pursuing amounts owed. As of the date of this letter, Pintzuk has incurred approximately $2,500.00 in legal fees and costs. If Pintzuk is forced to initiate litigation Frey Petrakis Deeb Blum & Briggs, P.C. 1 F R E Y PE .cAKIS D E E B B L U M & B GGS, P.C. 1 Foxy Fitness, LLC, a Contours Express Franchisee Ms. Tammy Sisto Ms. Rebecca Fox January 15, 2008 Page 2 and confess judgment against you, under the terms of the lease, reasonable attorneys' commission will be not less than $5,000.00. You have been advised multiple times that you are in default under the terms of the lease. Furthermore, Pintzuk has made multiple attempts to structure some sort of payment arrangement with you in order to settle the matter without resort to litigation. As per your letter dated September 28, 2007, you have sought "legal counsel." Please forward this letter to your attorney or have your attorney contact me. If you are not represented by counsel, I request that you personally contact me to discuss your fulfillment of your monetary obligations under the lease. At this time, Pintzuk wishes to explore opportunities to amicably settle this matter. Therefore, this letter is for the purposes of settlement only, and cannot be used for any other purpose or introduced as evidence in any proceeding. However, please be advised that Pintzuk has authorized my firm to pursue, to the fullest extent possible under Pennsylvania law, all amounts due and owing by you. Please respond within fifteen (15) days of the date of this letter so that we can timely move this matter forward. If I do not hear from you within 15 days, my client will have no other choice but to initiate litigation against you and follow all other recourse available to obtain payment. I look forward to hearing from you. V 'Y' ly yours, ?. 1 i TI A M. HU S CMH/smc, 6E : I I V S - 8VW 8001 d3183HS ?ri1 q0 3J1j-j0 h S .E d q- 933 8001 dd '?,INi UGC u?? id ??(1J JAI83HS 3H1 .110 3JIJ a0 _ r SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-00841 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOME ELITE LTD VS FOXY FITNESS LLC ET AL R. Thomas Kline Amended Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT FOXY FITNESS LLC T/A CONTOURS EXPRESS but was unable to locate Them to wit: in his bailiwick. He therefore deputized the sheriff of ADAMS County, Pennsylvania, to serve the within COMPLT-CONFES .TTTn(,MFNT On March 12th , 2008 , this office was in receipt of t attached return from ADAMS Sheriff's Costs: So answe Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Adams County 59.00 Sheriff of Cumberland County Postage 2.21 98.21 ? !//?/0 &, 03/12/2008 FREY PETRAKIS DEEB BLUM & BRIG Sworn and subscribe to before me this day of A. D. HOME ELITE LIMITED and P.R. REAL ESTATE, LLC, Plaintiffs vs. FOXY FITNESS, LLC, T\A CONTOURS EXPRESS, TAMMY SISTO and REBECCA FOX, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-841 CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION OF DEFENDANT TAMMY SISTO TO STRIKE-OFF AND/OR OPEN CONFESSED JUDGEMENT AND NOW, comes the Defendant/Petitioner Tammy Sisto, by and through her attorney, Mark K. Emery, Esquire, and files this Petition to Strike-Off and/or Open Confessed Judgement, as follows: 1 2 3 4 Defendant/Petitioner Tammy Sisto (hereinafter "Petitioner"), is an adult individual currently residing at 1916 County Line Road, York Springs, Pennsylvania 17372. Plaintiffs/Respondents Home Elite Limited and P. R. Real Estate, LLC (hereinafter "Respondents"), upon information and belief, are a Pennsylvania Corporation and a Pennsylvania Limited Liability Company. On or about February 5, 2008 Respondents filed a Complaint for Confession of Judgment against all Defendants. Notice of the Complaint and entry of judgment was served upon Petitioner on February 21, 2008, and therefore this Petition is timely filed pursuant to Pa. R.C.P. 2959. 5. Respondents are the owners of a shopping center known as East Gate Plaza, located in Mechanicsburg, Pennsylvania. 6. On or about June 30, 2005, Respondents entered into a Lease Agreement (hereinafter "Lease") with Defendant Foxy Fitness, LLC. A copy of said Lease Agreement was attached and incorporated as Exhibit "B" in Respondent's Complaint for Confession of Judgement, and is attached hereto as Exhibit "A". 7. The Lease was drafted and prepared solely by Respondent. 8. Within said Lease, Respondent was identified as "Landlord" and Defendant Foxy Fitness, LLC, only, was identified as "Tenant". 9. The Lease, at Paragraph 68 (B), contained a confession of judgement clause. 10. The confession of judgement clause referred solely to "Tenant", identified within the Lease only as Foxy Fitness, LLC. 11. The Lease was signed solely by Foxy Fitness, LLC, through its members, Rebecca Fox and Tammy Sisto. 12. Nowhere within the Lease did Petitioner sign in her individual capacity. 13. The Lease, particularly the confession of judgement clause, must be clear and explicit, and strictly construed against Respondents. 14. As Petitioner is not a party to the Lease, the confession of judgement clause cannot be enforced against her individually. 15. As the face of the record establishes that Petitioner was not a party to the Lease, the confessed judgment against her must be stricken. 16. The Lease attempts to create a guarantee obligation by Sisto for a period of two (2) years at the commencement of the Lease. 17. Said guarantee is not effective as the guarantee clause is contained solely as an Exhibit, 2 and is not signed by either Tammy Sisto or Rebecca Fox in their individual capacity. 18. Assuming, arguendo, that such guarantee applied, such guarantee does not create a personal obligation of Petitioner under the confession of judgement clause, nor a right in Respondent to obtain a judgment by confession against Petitioner. 19. Confession of judgment clauses must be included in the actual guarantee agreement to be enforceable against the guarantor. 20. Respondent's request of $5,000.00 in attorney's fees is grossly excessive, and should be struck. 21. Respondents filed their Complaint for Confession of Judgement, and entered a judgement against Petitioner, with the knowledge that said confession of judgement clause was not applicable to Petitioner. 22. Respondent entered judgment by confession against Petitioner in a bad faith attempt to obtain an unfair and oppressive advantage in attempting to collect from Petitioner for payment of the corporate Defendant's alleged debt, with Respondent being aware that such corporate entity has limited assets available to make payment on any such debt. 23. Respondents filed their complaint for confession of judgment without sufficient legal basis or probable cause, and not for a proper purpose, in violation of both 42 Pa. C.S.A. §2737.1 and 42 Pa.C.S.A. §8351. 24. Respondents' conduct is a breach of their duty of good faith and fair dealing. 25. The enforcement of the confession of judgment clause against Petitioner would be unconscionable. 26. The enforcement of the confession of judgment clause against Petitioner would be in violation of her rights to due process. 27. The enforcement of the confession of judgment clause against Petitioner would be in violation of her rights and protections afforded to her under consumer financing agreements. WHEREFORE, Petitioner Tammy Sisto respectfully requests this Honorable Court strike- off and/or open the confessed judgement, and further award all costs and attorney's fees to Petitioner. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Defendant/Petitioner Tammy Sisto DATE: March 24, 2008 4 VERIFICATION I, Tammy Sisto, hereby verify that I have read the foregoing Petition to Open Judgment and that the information contained therein is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Tammy Sisto DATE: ? A d9 I. This Agreement is made on JUNE 3 b . 2005 BETWEEN PR REAL ESTATE, LLC & HOME ELITE, LTD. AS TENANTS IN COMMON residing or located at c% Pintzuk Brown Realty Group, Inc, 491 Old York Road, Suite 200, Jenkintown, PA 190406 herein designated as the "landlord," AND FOXY M NESS, LLC, A CONTOURS EXPRESS FRANCHISEE residing or located at 1916 COUNTY LINE ROAD, YORK SPRINGS, PA 17372 herein designated as the "Tenant " 1. Leased Premises. The Landlord does hereby lease to the Tenant and the Tenant does hereby rent from the Landlord, the Leased Premises (also know n as the "Premises") as described in the Basic Lease Provisions, supra. 2. Term. The Landlord does hereby lease to the Tenant and the Tenant does hereby rent from the Landlord, the Leased Premises for the Term as described in the Basic Lease Provisions, supra. 3. Use of Premises and Common Areas. Tenant shall in good faith continuously throughout the Term of this Lease conduct and carry on in the entire Premises the type of business described in Article 15 of the Basic Lease Provisions using Tenant's trade name, and the Premises shall not be used for any other purpose. Tenant specifically agrees that its use of the Premises shall never violate any of the restrictions set forth on Exhibit "D" attached hereto. Tenant shall not sell, display or solicit sales in the Common Areas. Tenant shall not use or permit the use of any vending machines or public telephones on, at, or about the Premises without the prior written consent of Landlord. Tenant shall not commit waste, perform any acts or carry on any practices which may injure the Shopping Center or be a nuisance or menace to other tenants in the Shopping Center. Tenant shall operate its business in a dignified manner and in accordance with high standards of store operation so as to maintain a character in keeping with the rest of the Shopping Center, and so as to maximize Tenant's gross sales and shall, at all times when the Premises are open for business with the public, keep the Premises properly equipped with fixtures, stocked with an adequate supply of merchandise and attended by adequate personnel. In the use and occupancy of the Premises and with respect to conditions created at Tenant's request, or as a result of Tenant's performance or breach of any of its obligations hereunder or any fault of Tenant, Tenant shall, at Tenant's expense, comply with all laws and ordinances and all valid rules and regulations and all directives, orders and citations of federal, state, county and municipal authorities having jurisdiction over the Premises, including without limitation the Americans with Disabilities Act and all requirements of any insurance company and any public or private agency having authority over insurance rates. 4. Rent. The Tenant agrees to pay Rent and Additional Rent to Landlord per the schedule shown in Article 6 and 12 of the Basic Lease Provisions, supra. Rent is due on the fast day of each month. The fast payment of Base Rent, Additional Rent, and Security Deposit are due upon the signing of the Lease by the Tenant. The Tenant must pay a late charge of ten percent as additional rent for each payment that is more than 10 days late. This late charge is due with the monthly rent payment. The Tenant must also pay a fee of $50.00 as additional rent for any dishonored check. 5. Late Charge. Other remedies for non-payment of Rent notwithstanding, if any monthly installment of Rent or percentage rent or Additional Rent is not received by Landlord on or before the date due, or if any payment due Landlord by Tenant which does not have a scheduled due date is not received by Landlord on or before the tenth (10th) day following the date Tenant's rent was due therefore, a late charge of ten percent (10%) of such past due amount shall be immediately due and payable as Additional Rent hereunder and interest shall accrue on all delinquent amounts from the date past due until paid at the lower of a rate of one and one-half percent (1-1/2%) per month or fraction thereof from the date such payment is due until paid (Annual Percentage Rate = 18%), or the highest rate permitted by applicable law. 6. Partial Payment. No payment by Tenant or acceptance by Landlord of an amount less than the Rent herein stipulated shall be deemed a waiver of any other Rent due. No partial payment or endorsement on any check or any letter accompanying such payment of Rent shall be deemed an accord and satisfaction, but Landlord may accept such payment without prejudice to Landlord's right to collect the balance of any Rent due under the terms of this Lease or any late charge assessed against Tenant hereunder. 7. RepaWAlterations.The Tenant has examined the Leased Premises and has entered into this Lease without any representation on the part of the Landlord as to the condition thereof. (a) Repairs By Landlord. Landlord shall keep the foundation, the roof and the exterior walls of the Premises (except plate glass, doors, door closures, door frames, store fronts, windows and window frames located in exterior building walls) in good repair, and Tenant shall pay, as additional rent, the cost of any such repairs occasioned by the act or neglect of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, and the cost to repair any damage caused by or as a result of Tenant's occupancy of Premises, or any damage caused by break-in, burglary, or other similar acts in or to the Premises, within ten (10) days after demand for payment by Landlord. In the event that the Premises should become in need of repairs required to be made by Landlord hereunder, Tenant shall give immediate written notice thereof to Landlord, and Landlord shall not be responsible in any way for failure to make any such repairs until a reasonable time shall have elapsed after the giving of such written notice. Landlord may elect by giving notice thereof to Tenant, to require Tenant within a reasonable time and at Tenant's expense, to make any repairs that Landlord is required to make at Tenant's expense under this Section, and in such event Tenant shall not be required to pay the cost thereof to Landlord as additional rent. (b) Repairs By Tenant. Tenant shall, at its sole cost and expense, keep the Premises in a safe, sightly, and serviceable condition; Tenant shall at its sole cost and expense supply a dumpster for Tenants Trash ; Tenant shall keep the premises free from any infestation by insects, rodents, or other pests, and, except as provided in this Section make all needed maintenance, repairs, and replacements for the proper operation of Tenant's business within the Premises, including all maintenance, repairs, and replacements to: (i) the heating, ventilating, and air conditioning systems serving the Premises; (ii) the 4 exterior and interior portion of all doors, windows, window frames, plate glass, door closures, door frames and store fronts including exterior signage; (iii) all plumbing and sewage facilities within the Premises, including free flow up to the connection to the main sewer line, grease traps, sprinkler systems; (iv) all fixtures within the Premises; (v) all electrical systems serving the Premises (whether or not located within the Premises); (vi) all sprinkler systems serving the Premises; (vii) all interior walls, floors, and ceilings; (viii) any of the Tenant's Work; (ix) all repairs, replacements, or alterations required by any governmental authority; and (x) all necessary repairs and replacements of Tenant's trade fixtures required for the proper conduct and operation of Tenant's business. If at any time and from time to time during the Term, and any extensions and renewals thereof, Tenant shall fail to make any maintenance, repairs, or replacements in and to the Premises as required in this Lease, Landlord shall have the right, but not the obligation, to enter the Premises and to make such maintenance, repairs, and replacements for and on behalf of Tenant, and all sums expended by Landlord for such maintenance, repairs, and replacements shall be deemed to be additional rent hereunder and shall be payable to Landlord upon demand. At the termination of this Lease, Tenant shall surrender the Premises in good condition, reasonable wear and tear and loss by fire or other casualty alone excepted. Tenant shall keep in force a standard maintenance agreement on all heating, ventilating, and air conditioning systems serving the Premises with a reputable heating and air conditioning service organization which shall be subject to Landlord's approval and shall provide a copy of said maintenance agreement to Landlord for its approval. & Compliance with Laws etc. The Tenant shall promptly comply with all laws, ordinances, rules, regulations, requirements and directives of the Federal, State and Municipal Governments or Public Authorities and of all their departments, bureaus and subdivisions, applicable to and affecting the said premises, their use and occupancy, (including, without limitation, the Americans with Disabilities Act) for the correction, prevention and abatement of nuisances, violations or other grievances in, upon or connected with the said premises, during the term hereof, and shall promptly comply with all orders, regulations, requirements and directives of the Board of Fire Underwriters or similar authority and of any insurance companies which have issued or are about to issue policies of insurance covering the said premises and its contents, for the prevention of fire or other casualty, damage or injury, at the Tenant's own cost and expense. 9. Assignment. The Tenant shall not assign, mortgage or hypothecate this Lease, nor sublet or sublease the Leased Premises or any part thereof; nor occupy or use the Leased Premises or any part thereof, nor permit or suffer the same to be occupied or used for any purposes other than as herein limited, nor for any purpose deemed unlawful, disreputable, or extra hazardous, on account of fire or other casualty. 10. Destruction or Damage by Casualty. (a) Tenant shall give immediate written notice to Landlord of any damage to the Premises caused by fire or other casualty, and if Landlord does not elect to terminate this Lease as hereinafter provided, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Premises. Notwithstanding the foregoing, in the event that: (i) the insurance proceeds payable in connection with such damage and destruction shall be insufficient to make such restoration; (ii) the building in which the Premises are located shall be destroyed or substantially damaged by casualty not covered by standard fire or extended coverage insurance; (iii) such building shall be destroyed or rendered untenantable by any casualty to the extent of at least fifty percent (50%) of the Rentable Area of such building; (iv) Landlord shall not have actual and unconditional receipt of the insurance proceeds payable in connection with such damage and destruction; (v) the holder of any mortgage, deed to secure debt, deed of trust, or other instrument in the nature thereof which encumbers Landlord's interest hereunder or in the Premises shall require that such proceeds shall be applied against any indebtedness owed to such holder; or (vi) there shall be less than two (2) years 5 remaining in the Term, or any extension or renewal thereof, then, in any of such events, Landlord may elect either to terminate this Lease or to proceed to rebuild and repair the Premises. Landlord shall give written notice to Tenant of such election within ninety (90) days after the occurrence of such casualty. (b) Landlord's obligation to rebuild and repair the Premises under this Section shall in any event be limited to restoring Landlord's work to substantially the condition in which the same existed prior to the casualty, and Tenant agrees that promptly after the completion of such work by Landlord, Tenant will proceed with reasonable diligence and at Tenant's sole cost and expense to restore Tenant's work and all alterations, additions and improvements done by Tenant within the Premises to substantially the condition in which the same existed prior to the casualty. (c) Tenant agrees that during any period of reconstruction or repair of the Premises, it will continue the operation of its business within the Premises to the extent practicable. During the period from the occurrence of a casualty until Landlord's repairs are completed, the Minimum Rent (but not Percentage Rent) shall be reduced and abated in proportion to the amount of Rentable Area of the Premises which is rendered untenantable as a result of such casualty; provided, however, that if such damage or destruction is caused by the intentional or negligent acts or omissions of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, then, and in that event, the Minimum Rent shall not abate. Tenant shall not be entitled to and hereby waives, releases, and relinquishes any and all claims against Landlord for any compensation or damage for loss of use of all or any part of the Premises or for any inconvenience or annoyance occasioned by any such damage, destruction, repair, or restoration of the Premises. (d) Tenant agrees at all times at its expense to keep its merchandise, fixtures, Tenant's Work, all alterations, additions and improvements done by Tenant within the Premises and Tenant's other property situated within its Premises insured by "All Risk" insurance in an amount equal to its full replacement value. Such insurance shall be carried with companies reasonably satisfactory to Landlord. Such insurance shall be non-cancelable and non-amendable except after ten (10) days written notice to Landlord. Such policies or duly executed certificates of insurance with respect thereto shall be delivered to Landlord, together with evidence of payment of the premium therefore, prior to the Rent Commencement Date and renewals thereof as required shall be delivered to Landlord at least thirty (30) days prior to the expiration of the respective policy terms. The proceeds of such insurance shall be payable to Landlord and Tenant, jointly, for use by Tenant only, except with the consent of Landlord, for the repair or replacement of merchandise, fixtures, Tenant's Work, or other property which was situated within the Premises. (e) In the event that fifty percent (50%) or more of the Rentable Area of the Shopping Center shall be destroyed or substantially damaged by any casualty, notwithstanding that the Premises may be unaffected by such casualty, Landlord may terminate this Lease by giving the Tenant thirty (30) days prior written notice of Landlord's election to do so, which notice shall be given, if at all, within ninety (90) days following the date of such occurrence. Rent shall be adjusted as of the date of such termination. 11. Damage or Theft of Personal Property. All personal property brought into the Premises shall be at the risk of the Tenant only and Landlord shall not be liable for theft thereof or any damage thereto occasioned by any acts of co-tenants, or other occupants of the Building, or any other person, except, with 6 respect to damage to the Premises, as may be occasioned by the grossly negligent or willful act of the Landlord, its employees and agents. 12. "As Is" The Tenant has inspected the Leased Premises and agrees that the Leased Premises is in satisfactory condition. The Tenant accepts the Leased Premises "as is." Notwithstanding the above, Landlord shall erect, at it's own expense a demising wall between suites 18 & 19 which will be delivered in paint ready condition. The Landlord shall also, at its own expense, remove the middle wall/partition located in the Leased Premises. 13. Alterations and/or Improvements. No alterations, additions or improvements shall be made, and no climate regulating, air conditioning, cooling, heating or sprinkler systems, television or radio antennas, heavy equipment, apparatus and fixtures, shall be installed in or attached to the Leased Premises, without the written consent of the Landlord. Unless otherwise provided herein, all such alterations, additions or improvements and systems, when made, installed in or attached to the said premises, shall belong to and become the property of the Landlord and shall be surrendered with the Leased Premises and as part thereof upon the expiration or sooner termination of this lease, without hindrance, molestation or injury. If Landlord gives its written consent to any such alterations, additions or improvements and systems, all work and improvements shall be performed by Tenant in accordance with applicable local, state and federal laws, including obtaining permits and a certificate of occupancy for the work and improvements. 14. Inspection and Repair. The Tenant agrees that the Landlord and the Landlord's agents, employees or other representatives, shall have the right to enter into and upon the said premises or any part thereof, at all reasonable hours, for the purpose of examining the same or making such repairs or alterations therein as may be necessary for the safety and preservation thereof. This clause shall not be deemed to be a covenant by the Landlord nor be construed to create an obligation on the part of the Landlord to make such inspection or repairs. 15. Right to ]Exhibit. The Tenant agrees to permit the Landlord and the Landlord's agents, employees or other representatives to show the Leased Premises to persons wishing to rent or purchase the same, and Tenant agrees that on and after 180 days next preceding the expiration of the tern hereof, the Landlord or the Landlord's agents, employees or other representatives shall have the right to place notices on the front of said premises or any part thereof, offering the Leased Premises for rent or for sale; and the Tenant hereby agrees to permit the same to remain thereon without hindrance or molestation. 16. Glass, etc. Damage, Repairs. In case of the destruction of or any damage to the glass in the Leased Premises, or the destruction of or damage of any kind whatsoever to the said premises, caused by the carelessness, negligence or improper conduct on the part of the Tenant or the Tenant's agents, employees, guests, licensees, invitees, subtenants, assignees or successors, the Tenant shall repair the said damage or replace or restore any destroyed parts of the Leased Premises, as speedily as possible, at the. Tenant's own cost and expense. 17. Signs. The Tenant shall not place nor allow to. be placed any signs of any kind whatsoever, upon, in or about the said premises or any part thereof, except of a design and structure and in or at such places as may be indicated and consented to by the Landlord in writing. In case the Landlord or the Landlord's agents, employees or representatives shall deem it necessary to remove any such signs in order to paint or make any repairs, alterations or improvements in or upon said premises or any part thereof, they may be so removed, but shall be replaced at the Landlord's expense when the said repairs, alterations or improvements shall have been completed. Any signs permitted by the Landlord shall at all times conform with all municipal ordinances or other laws and regulations applicable thereto. 18. Non-Inability of Landlord. The Landlord shall not be liable for any damages or injury which may be sustained by the Tenant or any other person, as a consequence of the failure, breakage, leakage or obstruction of the water, plumbing, steam, sewer, waste or soil pipes, roof, drains, leaders, gutters, valleys, down-spouts or the like or of the electrical, gas, power, conveyor, refrigeration, sprinkler, air-conditioning or heating systems, elevators or hoisting equipment; or by reason of the elements; or resulting from the carelessness, negligence or improper conduct on the part of any other Tenant or this or any other Tenant's agents, employees, guests, licensees, invitees, subtenants, assignees or successors; or attributable to any interference with, interruption of or failure, beyond the control of the Landlord, of any services to be furnished or supplied by the Landlord. 19. Mortgage Priority. (a) Tenant agrees that this Lease shall be subject and subordinate: (i) to any mortgage, deed of trust or other security interest now encumbering the Shopping Center and to all advances which may be hereafter made, to the full extent of all debts and charges secured thereby and to all renewals or extensions of any part thereof, and to any mortgage, deed of trust or other security interest which any owner of the Shopping Center may hereafter, at any time, elect to place on the Shopping Center; (ii) to any assignment of Landlord's interest in the leases and rents from the Shopping Center which includes the Lease which now exists or which any owner of the Shopping Center may hereafter, at any time, elect to place on the Shopping Center; and (iii) to any Uniform Commercial Code Financing Statement covering the personal property rights of Landlord or any owner of the Shopping Center which now exists or any owner of the Shopping Center may hereafter, at any time, elect to place on the foregoing personal property (all of the foregoing instruments set forth in (i), (ii) and (iii) above being hereafter collectively referred to as "Security Documents"). Tenant agrees upon request of the holder of any Security Documents ("Holder") to hereafter execute any documents which the counsel for Landlord or Holder may reasonably deem necessary to evidence the subordination of the Lease to the Security Documents. Within ten (10) days after request therefore, if Tenant fails to execute any such requested documents, Landlord or Holder is hereby empowered to execute such documents in the name of Tenant evidencing such subordination, as the act and deed of Tenant, and this authority is hereby declared to be coupled with an interest and not revocable. (b) In the event of a foreclosure pursuant to any Security Documents, Tenant shall at the election of the Landlord, thereafter remain bound pursuant to the terms of this Lease as if a new and identical Lease between the purchaser at such foreclosure ('Purchaser"), as landlord, and Tenant, as tenant, had been entered into for the remainder of the Term hereof and Tenant shall attorn to the Purchaser upon such foreclosure sale and shall recognize such Purchaser as the Landlord under the Lease. Such attornment shall be effective and self-operative without the execution of any further instrument on the part of any of the parties hereto. Tenant agrees, however, to execute and deliver at any time and from time to time, upon the request of Landlord or of Holder, any instrument or certificate that may be necessary or appropriate in any such foreclosure proceeding or otherwise to evidence such attornment. (c) If the Holder of any Security Document or the Purchaser upon the foreclosure of any of the Security Documents shall succeed to the interest of Landlord under the Lease, such Holder or Purchaser shall have the same remedies, by entry, action or otherwise for the non-performance of any agreement contained in the Lease, for the recovery of Rent or for any other default or event of default hereunder that Landlord had or would have had if any such Holder or Purchaser had not succeeded to the interest of Landlord. Any such Holder or Purchaser which succeeds to the interest of Landlord hereunder, shall not be: (a) liable for any act or omission of any prior Landlord (including Landlord) unless such act or omission is of a continuing nature; or (b) subject to any offsets or defenses which Tenant might have against any prior Landlord (including Landlord); or (c) bound by any Rent which Tenant might have paid for more than the current month to any prior Landlord (including Landlord); or (d) bound by any amendment or modification of the Lease made without its consent. 8 r' (d) Notwithstanding anything to the contrary set forth in this Section, the Holder of any Security Documents shall have the right, at any time, to elect to make this Lease superior and prior to its Security Document. No documentation, other than written notice to Tenant, shall be required to evidence that the Lease has been made superior and prior to such Security Documents, but Tenant hereby agrees to execute any documents reasonably requested by Landlord or Holder to acknowledge that the Lease has been made superior and prior to the Security Documents. 20. Security. The Tenant has this day deposited with the Landlord the sum as shown in Article 14 of the Basic Lease Provisions as security for the payment of the rent hereunder and the full and faithful performance by the Tenant of the covenants and conditions on the part of the Tenant to be performed. Said sum shall be returned to the Tenant, without interest, after the expiration of the term hereof, provided that the Tenant has fully and faithfully performed all such covenants and conditions and is not in arrears m rent. During the term hereof, the Landlord may, if the Landlord so elects, have recourse to such security, to make good any default by the Tenant, in which event the Tenant shall, on demand, promptly restore said security to its original amount. Liability to repay said security to the Tenant shall run with the reversion and title to said premises, whether any change in ownership thereof be by voluntary alienation or as the result of judicial sale, foreclosure or other proceedings, or the exercise of a right of taking or entry by any mortgagee. The Landlord shall assign or transfer said security, for the benefit of the Tenant, to any subsequent owner or holder of the reversion or title to said premises, in which case the assignee shall become liable for the repayment thereof as herein provided, and the assignor shall be deemed to be released by the Tenant from all liability to return such security. This provision shall be applicable to every alienation or change in title and shall in no wise be deemed to permit the Landlord to retain the security after termination of the Landlord's ownership of the reversion or title. The Tenant shall not mortgage, encumber or assign said security without the written consent of the Landlord. 21. Increase of Insurance Rates. If for any reason it shall be impossible to obtain fine and other hazard insurance on the buildings and improvements on the Leased Premises, at standard rates and in the form and in insurance companies reasonably acceptable to the Landlord, the Landlord may, if the Landlord so elects at any time thereafter, terminate this lease and the term hereof, upon giving to the Tenant fifteen days notice in writing of the Landlord's intention so to do, and upon the giving of such notice, this lease and the term thereof shall terminate. If by any reason of the use to which the Leased Premises are put by the Tenant or character of or the manner in which the Tenant's business is carried on, the insurance rates for fire and other hazards shall be increased, the Tenant shall upon demand, pay to the Landlord, as rent, the amounts by which the premiums for such insurance are increased. Such payment shall be paid with the next installment of rent but in no case later than one month after such demand, whichever occurs sooner. 22.. Utilities. The Tenant shall pay when due all the rents or charges for water, sewer, gas and electricity used by the Tenant, which are or may be assessed or imposed upon the Leased Premises or which are or may be charged to the Landlord by the suppliers thereof during the term hereof, and if not paid, such rents or charges shall be added to and become payable as additional rent with the installment of rent next due or within 30 days of demand therefor, whichever occurs sooner. Tenant shall contract Directly with the electrical and gas supplier for these utililities. Tenant shall arrange and pay for all utilities and services required in the Leased Premises, including but not limited to, (a) electric, (b) heat, (c) gas, (d) water and (e) sewer services. Landlord shall not be responsible for interruption or impairment of service or utility. 23. Condemnation & Eminent Domain. If the land and premises leased herein, or of which the Leased Premises are a part, or any portion thereof, shall be taken under eminent domain or condemnation proceedings, or if suit or other action shall be instituted for the taking or condemnation thereof, or if in lieu of any fmnal condemnation proceedings or actions, the Landlord shall grant an option to purchase and or shall sell and convey the said premises or any portion thereof, to the governmental or other public authority, agency, body or public utility, seeking to take said land and Leased Premises or any portion thereof, then this lease, at the option of the Landlord, shall terminate, and the term hereof shall end as of such date as the Landlord shall fix by notice in writing; and the Tenant shall have no claim or right to claim or be entitled to any portion of any amount which may be awarded as damages or paid as the result of such condemnation, proceedings or paid as the purchase price for such option, sale or conveyance in lieu of formal condemnation proceedings; and all rights of the Tenant to damages, if any, are hereby assigned to the Landlord. The Tenant agrees to execute and deliver any instruments, at the expense of the Landlord, as may be deemed necessary or required to expedite any condemnation proceedings or to effectuate a proper transfer of title to such governmental or other public authority, agency, body or public utility seeking to take or acquire the said lands and Leased Premises or any portion thereof. The Tenant covenants and agrees to vacate the said premises, remove all the Tenant's personal property therefrom and deliver up peaceable possession thereof to the Landlord or to such other party designated by the Landlord in the aforementioned notice. Failure by the Tenant to comply with any provisions in this clause shall subject the Tenant to such costs, expenses, damages and losses as the Landlord may incur by reason of the Tenant's breach hereof. 24. Abandonment of Premises. Tenant agrees not to abandon or vacate the Premises during the Term of this Lease. If Tenant does abandon or vacate the Premises for more than ninety (90) days, Landlord may terminate this Lease, by written notice to Tenant at any time prior to Tenant reoccupying the Premises, but such termination shall not entitle Landlord to pursue any other remedies unless an uncured Default then exists, in which case Landlord may pursue any and all remedies provided by this Lease, at law or in equity. 25. Default. If Tenant shall default in the payment of Rent, Additional Rent, Percentage Rent or any Sum due; herein reserved when due and fails to cure such default within ten (10) days after written notice of such default is given to Tenant by Landlord; or if Tenant shall be in default in performing any of the terms or provisions of this Lease other than the provisions requiring the payment of Rent, and fails to cure such non-monetary default within thirty (30) days after written notice of such default is given to Tenant by Landlord, provided however that if such non-monetary default is of such a nature that it cannot through the exercise of diligent and reasonable efforts be cured within thirty (30) days, then Tenant shall not be in default in such instance if Tenant promptly commences and.diligently pursues the cure of such non-monetary default to completion as soon as possible and in all events within ninety (90) days after such initial notice; or if Tenant is adjudicated a bankrupt; or if a permanent receiver is appointed for Tenant's property and such receiver is not removed within sixty (60) days after appointment thereof; or if, whether voluntarily or involuntarily, Tenant takes advantage of any debtor relief proceedings under any present or future laws, whereby the Rent or any part thereof, is, or is proposed to be, reduced or payment thereof deferred; or if Tenant's effects should be levied upon or attached and such levy or attachment is not satisfied or dissolved within thirty (30) days after such levy or attachment; or, if Tenant is an individual, in the event of the death of the individual and the failure of the executor, administrator or personal representative of the estate of the deceased individual to have assigned the Lease within three (3) months after such death to an assignee approved by Landlord; then, and in any of such events, Landlord, at its option, may exercise any or all of the remedies set forth in this Lease. 10 26. Remedies Upon Tenant's Default If there should occur any default on the part of the Tenant in the performance of any conditions and covenants herein contained, or if during the term hereof the Leased Premises or any part thereof shall be or become abandoned or deserted, vacated or vacant, or should the Tenant be evicted by summary proceedings or otherwise, the Landlord, in addition to any other remedies herein contained or as may be permitted by law, may either by force or otherwise, without being liable for prosecution therefor, or for damages, re-enter the said premises and the same have and again possess and enjoy; and as agent for the Tenant or otherwise, re-let the Leased Premises and receive the rents therefor and apply the same, first to the payment of such expenses, reasonable attorney fees and costs, as the Landlord may have been put to in re-entering and repossessing the same and in making such repairs and alterations as may be necessary; and second to the payment of the rents due hereunder. The Tenant shall remain liable for such rents as may be in arrears and also the rents as may accrue subsequent to the re-entry by the Landlord, to the extent of the difference between the rents reserved hereunder and the rents, if any, received by the Landlord during the remainder of the unexpired term hereof, after deducting the aforementioned expenses, fees and costs; the same to be paid as such deficiencies arise and are ascertained each month. 27. Termination on Default. Upon the occurrence of any of the contingencies set forth in the preceding clause, or should the Tenant be adjudicated as bankrupt, insolvent or placed in receivership, or should proceedings be instituted by or against the Tenant for bankruptcy, insolvency, receivership, agreement or composition or assignment for the benefit of creditors, or if this lease or the estate of the Tenant hereunder shall pass to another by virtue of any court proceedings, writ of execution, levy, sale, or by operation of law, the Landlord may, if the Landlord so elects, at any time thereafter, terminate this lease and the term hereof, upon giving to the Tenant or to any trustee, receiver, assignee or other person in charge of or acting as custodian of the assets or property of the Tenant, five days notice in writing, of the Landlord's intention so to do. Upon the giving of such notice, this lease and the term hereof shall end on the date fixed in such notice as if the said date was the date originally fixed in this lease for the expiration hereof; and the Landlord shall have the right to remove all persons, goods, fixtures and chattels therefrom, by force or otherwise, without liability for damages. 28. Removal of Tenant's Property. Any equipment, fixtures, goods or other property of the Tenant, not removed by the Tenant upon the termination of this lease, or upon any quitting, vacating or abandonment of the Leased Premises by the Tenant, or upon the Tenant's eviction, shall be considered as abandoned and the Landlord shall have the right, without any notice to the Tenant, to sell or otherwise dispose of the same, at the expense of the Tenant, and shall not be accountable to the Tenant for any part of the proceeds of such sale, if any. 29. Reimbursement of Landlord. If the Tenant shall fail or refuse to comply with and perform any conditions and covenants of the within lease, the Landlord may, if the Landlord so elects, cant' out and perform such conditions and covenants, at the cost and expense of the Tenant, and the said cost and expense shall be payable on demand, or at the option of the Landlord shall be added to the installment of rent due immediately thereafter but in no case later than one month after such demand, whichever occurs sooner, and shall be due and payable as such. This remedy shall be in addition to such other remedies as the Landlord may have hereunder by reason of the breach by the Tenant of any of the covenants and conditions in this lease contained 30. Non-Performance by Landlord This lease and the obligation of the Tenant to pay the rent hereunder and to comply with the covenants and conditions hereof, shall not be affected, curtailed, impaired or excused because of the Landlord's inability to supply any service or material called for herein, by reason of any rule, order, regulation or preemption by any governmental entity, authority, department, agency or subdivision or for any delay which may arise by reason of negotiations for the adjustment of any fire or other casualty loss or because of strikes or other labor trouble or for any cause beyond the control of the Landlord. 11 S' 31. Validity of Lease.The terms, conditions, covenants and provisions of this lease shall be deemed to be severable. If any clause or provision herein contained shall be adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it shall not affect the validity of any other clause or provision herein, but such other clauses or provision shall remain in full force and effect. 32. Non-Waiver by Landlord. The various rights, remedies, options and elections of the Landlord, expressed herein, are cumulative, and the failure of the Landlord to enforce strict performance by the Tenant of the conditions and covenants of this lease or to exercise any election or option or to resort or have recourse to any remedy herein conferred or the acceptance by the Landlord of any installment of rent after any breach by the Tenant, in any one or more instances, shall not be construed or deemed to be a waiver or a relinquishment for the future by the Landlord of any such conditions and covenants, options, elections or remedies, but he same shall continue in full force and effect. 33. Notices. All notices required under the terms of this lease shall be given and shall be complete by mailing such notices by certified or registered rail, return receipt requested, to the address of the parties as shown at the head of this lease, or to such other address as may be designated in writing, which notice of change of address shall be given in the same manner. 34. Title and Quiet Enjoyment. The Landlord covenants and represents that the Landlord is the owner of the Leased Premises herein leased and has the right and authority to enter into, execute and deliver this lease; and does further covenant that the Tenant on paying the rent and performing the conditions and covenants herein contained, shall and may peaceably and quietly have, hold and enjoy the Leased Premises for the term aforementioned. Landlord shall not be responsible for the acts or omissions of any other tenant or third party that may interfere with Tenant's use and enjoyment of the Premises. 35. Force Majeure. In the event of a strike, lockout, labor trouble, civil commotion, an act of God, or any other event beyond Landlord's control (a "force majeure event") which results in the Landlord being unable to timely perform its obligations hereunder to repair the Premises, provide services, or complete Work (as provided in Exhibit "B"), so long as Landlord diligently proceeds to perform such obligations after the end of such force majeure event, Landlord shall not be in breach hereunder, this Lease shall not terminate, and Tenant's obligation to pay any Minimum Rent, additional rent, or any other charges and sums due and payable shall not be excused. 36. Entire Contract.This lease contains the entire contract between the parties. No representative, agent or employee of the Landlord has been authorized to make any representations or promises with reference to the within letting or to vary, alter or modify the terms hereof. No additions, changes or modifications, renewals or extensions hereof, shall be binding unless reduced to writing and signed by the Landlord and the Tenant. 37. Conformity with laws and Regulations. ilie Landlord may pursue the relief or remedy sought in any invalid clause, by conforming the said clause with the provisions of the statutes or the regulations of any governmental agency in such case made and provided as if the particular provisions of the applicable statutes or regulations were set forth herein at length. A Number and Gender. In all references herein to any parties, persons, entities or corporations the use of any particular gender or the plural or singular number is intended to include the appropriate gender or number as the text of the within instrument may require. All the terms, covenants and conditions herein contained shall be for and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs, executors, administrators, personal or legal representatives, successors and assigns. 12 39. Brokers. Tenant warrants that it has had no dealings with any real estate broker or agents other than The Pintzuk Brown Realty Group and Campbell Commercial Real Estate in connection with the negotiation of this Lease, and it knows of no real estate broker or agent who is entitled to a commission in connection with this Lease. Tenant shall indemnify and defend Landlord against any costs, claims and expenses, including reasonable attorneys' fees, arising out of Tenant's breach of any representa- tion or agreement contained in this paragraph. 40. Additional Rent. Tenant agrees to pay as further additional rent, as hereinafter provided, Tenant's Share of expenses incurred by Landlord at its discretion for the operation, management and maintenance of the Common Areas of the Shopping Center as constituted from time to time (hereinafter called the "Common Area Expenses"). As used herein, the term "Common Areas" shall mean those areas of the Shopping Center, including all parking areas, which are from time to time open for joint use by the tenants of Shopping Center or by the public, including driveways, truckways, delivery passages, walkways, concourses, malls, planted areas, landscaped areas, and public restrooms and common truck loading and receiving areas which are not leased to or reserved for individual tenants. Common Area Expenses shall include without limitation management fees paid to a management company, expenses reimbursable to a management company, costs incurred for lighting, heating, air conditioning, painting, cleaning, removal of trash, garbage, debris and other refuse, central trash disposal (if Landlord elects to provide same), traffic control, fire protection, sewer, or septic system, compliance with governmental and other regulatory authority applicable to the Shopping Center, policing, inspecting, landscaping and repairing and replacing the Common Areas, or any part thereof, Landlord's share of costs incurred in the maintenance and repair of any offsite retention/detention facilities serving the Shopping Center and any offsite accessways burdened by an easement benefiting the Shopping Center, depreciation of maintenance equipment, costs of all insurance, including any hazard, public liability and property damage insurance, and business interruption or rent insurance, as Landlord shall reasonably deem appropriate with respect to the Shopping Center, including appraisals and consultants' fees and premiums in connection with such insurance and deductible amounts paid in connection with any insurance claim, costs of all water consumed in the Shopping Center which is not separately metered to tenants (single or multiple), and an administrative fee of fifteen percent (15%) of the foregoing costs, but excluding depreciation of Landlord's original investment in the Shopping Center. All capital expenditures included in operating costs (including, but not limited to, the replacement of the roof and resurfacing the parking areas) shall be treated as if said expenditures have been capitalized over their useful life, and Tenant's Share shall in no event include the cost of initial construction or expansion of the Shopping Center and the common areas. Tenant's Share to be paid by Tenant with respect to Common Area Expenses shall be that percentage of the cost of operation and maintenance of the Common Areas which the Rentable Area of the Premises bears to the Rentable Area of the Shopping Center, unless the Shopping Center or any facility serving the Shopping Center is operated, managed or maintained in common with other property or serves additional property, in which event Tenant's Share may be that percentage of a common cost which the Rentable Area of the Premises bears to the Rentable Area of the property under common operation, management, maintenance or served by the facility. Landlord may at its option make monthly or other periodic charges based upon the estimated annual cost of operation and maintenance of the Common Areas, payable in advance but subject to adjustment after the end of each calendar year on the basis of the actual costs for such year. Within ninety (90) days after the close of each calendar year, upon written request from Tenant, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting. 13 I. practices and to include Tenant's proportionate share of the expenses relating to the Common Areas computed as herein provided. Tenant shall be liable for and shall pay all taxes levied against personal property, fixtures, and Tenant's Work in the Premises as additional rent; if such taxes for which Tenant is liable are levied against Landlord or Landlord's property and if Landlord elects to pay the same or if the assessed value of Landlord's property is increased by inclusion of any such items and Landlord elects to pay the taxes based on such increase, Tenant shall pay to Landlord upon demand, as additional rent, that part of such taxes for which Tenant is liable hereunder. Tenant further agrees to pay as additional rent, Tenant's Share of the general real estate taxes, tax consultant fees, assessments, and governmental charges levied against Shopping Center for each calendar year beginning with the Rent Commencement Date and during the Lease Term and any renewals or extensions thereof, together with Tenant's Share of the reasonable cost of any contest of such taxes, assessments and charges or the assessed valuation of the Shopping Center that Landlord may pursue in its reasonable discretion, including fees and disbursements of attorneys, tax consultants, arbitrators, appraisers, experts and other witnesses (hereinafter called the "Taxes"). The Taxes shall be appropriately prorated during the first and last years of the Lease Term if such years are less than full calendar years. "Tenant's Share" shall be that percentage which the Rentable Area of the Premises bears to the Rentable Area of the Shopping Center. Landlord may at its option make monthly or other periodic charges based upon the estimated annual taxes, payable in advance but subject to adjustment after receipt of the tax statement by Landlord. Tenant agrees to pay as additional rent any rent tax or other tax imposed upon rent payments or imposed upon Landlord based upon rent payments by Tenant to Landlord, however Tenant shall not be required to pay any income tax of Landlord. In the event that a merchants association is formed for the Shopping Center, Tenant agrees that it will join and maintain membership in such association. The objectives of such association shall be to advance the civic, social, commercial and economic welfare of its members and the general interest of the Shopping Center and its trade area. Tenant will pay such dues and assessments as may be fixed and determined from time to time by such association. Tenant shall also comply with such other by-laws, rules, and regulations as may be adopted from time to time by such association, and shall take such actions as may be necessary to remain in good standing in such association and shall cooperate in all of the activities of such association. 41. Insurance. (a) Tenant shall keep in force throughout the Term: (a) a Commercial General Liability insurance policy or policies to protect Landlord against any liability to the public or to any invitee of Tenant incidental to the use of or resulting from any accident occurring in or upon the Leased Premises with a limit of not less than $1,000,000.00 per occurrence and not less than $2,000,000.00 in the annual aggregate, or such larger amount as Landlord may prudently require from time to time, covering bodily injury and property damage liability and $1,000,000.00 products/completed operations aggregate; (b) Business Auto Liability covering owned, non-owned and hired vehicles with a limit of not less than $1,000,000.00 per accident; (c) insurance protecting against liability under Worker's Compensation Laws with limits at least as required by statute; (d) Employers Liability with limits of $500,000.00 each accident, $500,000.00 disease policy limit, $500,000.00 disease - each employee; (e) All Risk or Special Form coverage protecting Tenant against loss of or damage to Tenant's alterations, additions, 14 1. improvements, carpeting, floor coverings, panelings, decorations, fixtures, inventory and other business personal property situated in or about the Leased Premises to the full replacement value of the property so insured; and, (f) Business Interruption Insurance with limit of liability representing loss of at least approximately six months of income. (b) Each of the aforesaid policies shall (i) be provided at Tenant's expense; (ii) name the Landlord and Landlord's mortgagee as additional insureds; (iii) be issued by an insurance company with a minimum Best's rating of "A+"; (iv) be with companies authorized to do business in the state where the property is located and (v) provide that said insurance shall not be cancelled unless thirty (30) days prior written notice (ten days for non-payment of premium) shall have been given to Landlord, and said policy or policies or certificates thereof, together with proof of payment, shall be delivered to Landlord by Tenant not less than fifteen (15) days prior to the commencement of the term hereof or the date when Tenant shall enter into possession, whichever is sooner and at least thirty (30) days prior to each renewal of said insurance. (c) So long as their respective insurers so permit, Tenant and Landlord hereby mutually waive their respective rights of recovery against each other for any loss insured by fire, extended coverage, All Risks or other insurance now or hereafter existing for the benefit of the respective party but only to the extent of the net insurance proceeds payable under such policies. Each party shall obtain any special endorsements required by their insurer to evidence compliance with the aforementioned waiver. 42. Indem. reification. Landlord shall not be liable and Tenant hereby waives all claims against Landlord for any damage to any property or any injury to any person in or about the Leased Premises or the Shopping Center by or from any cause whatsoever, except to the extent caused by or arising from the gross negligence or willful misconduct of Landlord or its agents, employees or contractors. Tenant shall protect, indemnify and hold the Landlord entities harmless from and against any and all loss, claims, liability or costs (including court costs and attorney's fees) incurred by reason of (a) any damage to any property or any injury to any person occurring in, on or about the Leased Premises or the Shopping Center to the extent that such injury or damage shall be caused by or arise from any actual or alleged act, neglect, fault, or omission by or of Tenant, its agents, servants, employees, invitees, or visitors to meet any standards imposed by any duty with respect to the injury or damage; (b) the conduct or management of any work or thing whatsoever done by the Tenant in or about the Leased Premises or from transactions of the Tenant concerning the Leased Premises; (c) Tenant's failure to comply with any and all governmental laws, ordinances and regulations applicable to the condition or use of the Leased Premises or its occupancy; (d) any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of the Tenant to be performed pursuant to this Lease, or (e) or for any cause or reason whatsoever arising out of or by reason of the occupancy or business of Tenant. The provisions of this Article shall survive the termination of this Lease with respect to any claim or liability accruing prior to such termination. 43. Construction and Acceptance of Premises. (a) Landlord agrees that Landlord will complete Landlord's Work as defined in Exhibit "B", with such minor variations as Landlord may deem advisable. Tenant acknowledges that neither Landlord nor any of Landlord's agents, employees, representatives, legal representatives or brokers has made any representations or warranties whatsoever as to the suitability of the Premises for the conduct of Tenant's business or for any other purpose, and that neither Landlord nor any of Landlord's agents, employees, representatives, legal representatives or brokers agreed to undertake or cause to be undertaken any alterations or to construct any improvements to the Premises 15 I. or the Shopping Center except as expressly provided in this Lease. Tenant shall have no right to enter or occupy the Premises until the Possession Turnover. Date identified on Exhibit B attached hereto. If Landlord shall for any reason fail to complete that part of Landlord's Work which is required in the Premises prior to Landlord's Work Scheduled Completion Date, Landlord shall not be deemed to be in default hereunder or otherwise liable in damages to Tenant nor shall the Term or any provision of this Lease be affected. (b) Tenant agrees to submit to Landlord on or before the Plan Delivery Date identified on Exhibit B attached hereto plans and specifications in such detail as Landlord may reasonably request covering Tenant's Work as specified in Exhibit "B", and any other work which Tenant proposes to do in the Premises. Such plans and specifications shall comply with all requirements set forth in Exhibit "B". Tenant shall not commence any work in the Premises until Landlord has approved the plans and specifications therefor in writing, which approval shall not be unreasonably withheld or delayed. (c) Upon the Date for Delivery of Possession, Tenant agrees to accept possession thereof and to proceed with due diligence to perform the work described in such plans and specifications which have been approved by Landlord, and to install its fixtures, furniture, and equipment in the Premises. Any work Tenant does in the Premises causing venting, opening, sealing, waterproofing or any altering of the roof shall be performed by Landlord's roofing contractor at Tenant's expense. By occupying the Premises, Tenant shall be deemed to have acknowledged that the Landlord has complied with all of its covenants and obligations with respect to the construction of the Premises, except for defects in Landlord's Work which are latent at the time the Premises are occupied, which shall in any event be deemed waived by Tenant upon the expiration of one (1) year after the date the Premises are occupied by Tenant. In the event of any dispute concerning work performed or required to be performed in the Premises by Landlord or Tenant, the matter in dispute shall be submitted to Landlord's architect for determination and his certificate with respect thereto shall be binding on Landlord and Tenant. (d) Unless delayed in accordance with the provisions of Section 3(a) above, Tenant agrees to open the Premises to the public for business fully fixtured, stocked and staffed for the Permitted Use described in Article 15 of the Basic Lease Provisions no later than thirty (30) days after the Date for Delivery of Possession 44. Mechanic's Liens. If any mechanic's, construction or other liens shall be created or filed against the Leased Premises by reason of labor performed or materials furnished for Tenant in the erection, construction, completion, alteration, repair or addition to any building or improvement, Tenant shall upon demand, at Tenant's own cost and expense, cause such lien or liens to be satisfied and discharged of record together with any lien claims that may have been filed. Failure to do so shall entitle Landlord to resort to such remedies as are provided herein in the case of any default of this Lease, in addition to such as are permitted by law. 45. Remedies. In case of any default, re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a) all rent and additional rent shall be accelerated and shall become due thereupon and be paid up to the time of such re-entry, dispossess and/or expiration; (b) Landlord may re- let the Leased Premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms, which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent or charge a higher rental than that in this Lease; and/or (c) Tenant or the legal representatives of Tenant shall also pay 16 t. Landlord as liquidated damages for the failure of Tenant to observe and perform said Tenant's covenants herein contained, any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the subsequent lease or leases of the Leased Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease. The failure of Landlord to re-let the Leased Premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such expenses as Landlord may incur in connection with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage, advertising and for keeping the Leased Premises in good order or for preparing the same for re-letting. Any such liquidated damages shall be paid in monthly installments by Tenant on the rent day specified in this Lease. Landlord, in putting the Leased Premises in good order or preparing the same for re-rental may, at Landlord's option, make such alterations, repairs, replacements, and/or decorations in the Leased Premises as Landlord, in Landlord's sole judgment, considers advisable and necessary for the purpose of re-letting the Leased Premises, and the making of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release Tenant from liability. Landlord shall in no event be liable in any way whatsoever for failure to re- let the Leased Premises, or in the event that the Leased Premises are re-let, for failure to collect the rent thereof under such re-letting, and in no event shall Tenant be entitled to receive any excess, if any, of such net rent collected over the sums payable by Tenant to Landlord hereunder. 46. Delay in Giving Possession. This Section applies if Landlord cannot give possession of the Leased Premises on the beginning date because of the retention of possession by any occupant thereof, or for any other reason except as herein provided. Landlord shall then have 34 days in which to give possession. If possession is given within that time, Tenant shall accept possession and pay rent and additional rent from that date. The ending date of the term, and the Lease Year, shall not change. If possession is not given within that time, this Lease may be cancelled by either party on notice to the other. 47. Attorney Fees. In the event that Landlord must retain an attorney to collect rent, enforce any provision of this Lease, defend any action brought by or on behalf of Tenant, or regain possession of the Leased Premises, Tenant shall be liable to Landlord for all reasonable costs and attorney fees associated therewith. In case Landlord shall, without fault on its part, be made a party to any litigation commenced by or against Tenant, then Tenant shall pay all costs, expenses and reasonable attorneys' fees incurred or paid by Landlord in connection with such litigation. In the event of any action, suit or proceeding brought by Landlord to enforce any of the covenants and agreements in this Lease, the Landlord shall be entitled to recover from the Tenant of any costs, expenses and reasonable attorneys' fees incurred in connection with such action, suit or proceeding. 48. Waiver. Landlord's failure to enforce any provision in this Lease shall not prevent Landlord from enforcing any provision at a later time. 49. Rules and Regulations.Tenant shall comply with, and cause its employees, agents and invitees to comply with, all reasonable rules and regulations adopted by Landlord in connection with the use of the Leased Premises and the common areas of the property. 50. Hours of Operation/Tenant Retail Operating Covenants. (a) Tenant shall not, nor shall Tenant at any time permit any occupant of the Premises to: (i) conduct or permit any fire, bankruptcy or auction sale (whether real or fictitious) unless directed by order of a.court of bankruptcy or of competent 17 jurisdiction, or conduct or permit any fictitious "Going Out of Business" sale; (ii) use, or permit to be used, the malls or sidewalks adjacent to such Premises, or any other area outside the Premises for the sale or display of any merchandise or for any other business, occupation or undertaking, or for outdoor public meetings, circus or other entertainment (except for promotional activities in cooperation with the management of the Shopping Center or an association of merchants within the Shopping Center); (iii) use or permit to be used, any sound broadcasting or amplifying device which can be heard outside of the Premises; (iv) use or permit to be used any portion of the Premises for any unlawful purpose or use or permit the use of any portion of the Premises as regular living quarters, sleeping apartments or lodging rooms or for the conduct of any manufacturing business; (v) use the Premises for or conduct therein activities, the purpose for which is not included within the purpose for which the Premises may be used according to Article 15 of the Basic Provisions of this Lease; or (vi) use, operate or maintain the Premises in such manner that any of the rates for any insurance carried by Landlord, or the occupant of any premises within the Shopping Center, shall thereby be increased, unless Tenant shall pay to Landlord or such occupant within the Shopping Center, as the case may be, an amount equal to any such increase in rates, such payment to be made promptly on demand as each premium which shall include such increase shall become due and payable. (b) Tenant: (i) will not represent or advertise that it regularly or customarily sells merchandise at "manufacturers", "distributor's", or "wholesale", "warehouse", "fire sale", "bankruptcy sale", or similar prices or other than at retail prices; (ii) will keep all mechanical apparatus free of vibration or noise which may be transmitted beyond the confines of the Premises; (iii) will not cause or permit odors to emanate from the Premises; (iv) will not load or unload or permit the loading or unloading of merchandise, supplies or other property except within the area designated by Landlord from time to time; and (v) will not permit the parking or standing, outside of such designated area, of trucks, trailers or other vehicles or equipment engaged in such loading or unloading. (c) Tenant: (i) will keep clean the inside and outside of all glass in the doors and windows of the Premises; (ii) will replace promptly at its own expense with glass of like kind and quality any plate or window glass; (iii) will replace doors or door hardware of the Premises which may for any reason become cracked or broken; (iv) will maintain the Premises in a clean, orderly and sanitary condition and free of insects, rodents, vermin, and other pests; (v) will not permit undue accumulation of garbage, trash, rubbish or other refuse in the Premises; and (vi) will keep such refuse in proper containers inside the Premises until such time as same is called for to be removed. Tenant will maintain plate glass insurance reasonably satisfactory to Landlord if any plate glass is contained in the store front of the Premises. (d) Tenant shall keep the Premises open for business with the public during all hours when the Shopping Center generally is open for business with the public. Unless the hours during which Shopping Center shall be open for business with the public shall have been otherwise determined by a merchant's association, if in operation, or Landlord if not, Tenant shall keep the Premises open for business during it's self determined hours of operation. 18 t- Notwithstanding the provisions of this Section, no Tenant shall be required to keep its Premises open for business at any time prohibited by applicable law, ordinance or governmental regulations, and Tenant shall be permitted to close the Premises during reasonable periods for repairing, cleaning or decorating the Premises, with written permission from Landlord. (e) In the event that at any time during the Term, or any extension or renewal thereof, Tenant should vacate, abandon, or desert the Premises or cease operating the store therein fully fixtured, stocked and staffed for the Permitted Use, then, in any such event, Tenant shall be in default hereunder and Landlord shall have, in addition to all rights and remedies provided under this Lease regarding default, the right to collect not only the Minimum Rent and other rent otherwise provided for herein, but also additional rental at the rate of twice the per diem amount of Minimum Rent otherwise payable hereunder for each and every day that Tenant shall fail to do business within the Premises in accordance with the terms of this Lease; provided, however, that such additional rental shall not accrue during any period when the Premises are rendered untenantable by reason of fire, casualty, or cause beyond Tenant's control and not resulting from the intentional or negligent acts or omissions of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, and the failure to operate Tenant's store during such period shall not be deemed a default hereunder. Said additional rent is intended to contribute to the expense of monitoring the occupancy of the Premises and shall not be deemed a penalty or liquidated damages. 51. Nondisclosure of Lease Terms. Tenant acknowledges and agrees to maintain the confidentiality of the essential business terms of this Lease, and in particular, the financial terms. In no event will Tenant disclose such terms to other tenants or prospective tenants of the center. 52. Waiver of Jury Trial. Landlord and Tenant hereby mutually waive trial by jury in any proceeding concerning this Lease or arising therefrom. 53. Full Execution.This Lease shall not be binding on either party until it is executed by all parties and delivered to all parties. 54. Parking. Intentionally Left Blank 55. Tenant Estoppel Certificate. Tenant agrees to at any time and from time to time, within ten (10) days after Landlord's written request, execute, acknowledge and deliver to Landlord a written instrument certifying the Commencement Date, that Tenant has accepted possession of the Leased Premises and is open for business, that this Lease is unmodified and in full force and effect (or if there have been modifications, that it is in full force and effect as modified and stating the modifications), the dates to which Base Rent, Additional Rent and other charges have been paid in advance, if any, and stating whether or not to the best knowledge of the signer of such certificate, Landlord is in default in the performance of any covenant, agreement or condition contained in this Lease and, if so, specifying in 19 detail each such default of which the signer may or should have knowledge; and certifying such other matters as may be reasonably requested by Landlord. 56. Right to Relocate. As a material inducement for Landlord to enter into this Lease with Tenant, Landlord shall, throughout the Term of this Lease and any renewals thereof, have the right at Landlord's expense to relocate Tenant to other premises (the "New Premises") within the property. In the event Landlord elects to exercise the right of relocation, Landlord shall deliver written notice ("Landlord's Notice") to Tenant identifying the location of the New Premises and the date on which the Tenant shall be moved to the New Premises, which date shall not be less than 30 days from Tenant's receipt of Landlord's Notice. The square footage and frontage of the New Premises shall not be more than fifteen percent (15%) larger nor fifteen percent (15%) smaller than the Leased Premises. In the event that the New Premises do not consist of the identical number of square feet as the Leased Premises, the parties shall execute an instrument specifying the new number of square feet in the New Premises, and the new number of square feet shall be deemed effective as of the date on which the New Premises is delivered to Tenant. All rent shall be adjusted accordingly. 57. Cleaning Premises. Upon vacating the Premises, Tenant agrees to return the Premises to Landlord broom clean and in the same condition when Tenant's possession commenced, natural wear and tear excepted, regardless of whether any Security Deposit has been forfeited. 58. Removal of Fixtures. If Tenant is not in default hereunder, Tenant may, prior to the expiration of the Term of this Lease, or any extension thereof, remove any fixtures and equipment which Tenant has placed in the Premises which can be removed without significant damage to the Premises, provided Tenant promptly repairs all damages to the Premises caused by such removal. 59. Holding Over. If Tenant shall be in possession of the Leased Premises after the termination date of the Lease, and in the absence of any agreement extending the Term hereof or Landlord's demand to Tenant to sooner vacate the Leased Premises, the tenancy under this Lease shall become one from month to month terminable by either party on thirty (30) days prior written notice, at a monthly rental equal to one and one-half times the sum of (i) the monthly installment of Base Rent payable during the last month of the Term and (ii) the monthly installment of Additional Rent payable during the last month of the Term. Tenant shall also pay all other charges payable under the terms of the Lease, prorated for the period during which Tenant remains in possession. Such tenancy shall also be subject to all other conditions, provisions, and obligations of this Lease. Tenant shall not interpose any counterclaim or counterclaims in a summary proceeding or other action based on holdover. The provisions of this Section shall be in addition to any liability Tenant may have to Landlord in respect of its holdover. 60. Demolition. As a material inducement for Landlord to enter into this Lease with Tenant and to afford Landlord the opportunity to redevelop the Shopping Center in order to maximize its economic potential throughout the Term of this Lease, should Landlord decide to demolish no less than fifty (50) percent of the total gross square footage of all buildings in the Shopping Center, exclusive of space occupied by Anchor Tenants (which term for the purposes if this Paragraph shall mean any tenant(s) in the Shopping Center leasing 15,000 or greater gross square feet), Landlord shall have the absolute. right to terminate this Lease upon the giving of six (6) months prior written notice ("Demolition Notice") to Tenant. Should Landlord give the Demolition Notice, the Term of this Lease shall expire and terminate on the date set forth in said Notice as if said date were the expiration date of the Term of this Lease originally provided for in this Lease. 20 61. Liability Of Landlord If Landlord is found to have failed to perform any covenant, term or condition of this Lease, and if Tenant shall recover a money judgment against Landlord for such failure, the judgment shall be satisfied only out of the proceeds of sale received upon execution of the judgment and levy against the right, title and interest of Landlord in the Shopping Center as the same may then be encumbered, and neither Landlord nor any of its partners shall be. liable for any deficiency. It is understood that in no event shall Tenant have the right to levy execution against any property of Landlord other than its interest in the Shopping Center. The right of execution shall be subordinate and subject to any mortgage or other encumbrance upon the Shopping Center. No trustee, shareholder, officer, member, director, employee, parent or subsidiary company, Landlord affiliate or partner of Landlord shall in any event or at any time be personally liable for the payment of performance of any obligation required or permitted of Landlord under this Lease or under any document executed in connection herewith. No attachment, execution, writ or other process shall be sought or obtained, and no judicial proceeding shall be initiated by or on behalf of Tenant, against Landlord personally or Landlord's assets (other than Landlord's interest in the Shopping Center) as a result of any such failure, breach or default under this Lease, and neither they, nor Landlord nor any Landlord affiliate, shall be liable for any deficiency. 62. Hazardous Materials/indemnification. (a) Tenant shall not cause or permit the receipt, storage, use, location or handling in the Shopping Center (including the Premises) of any product, material or merchandise which is explosive, highly inflammable, or a "hazardous or toxic material," as that term is hereafter defined. "Hazardous or toxic material" shall include all materials or substances which have been determined to be hazardous to health or the environment and are regulated or subject to all applicable laws, rules and regulations from time to time, including, without limitation hazardous waste (as defined in the Resource Conservation and Recovery Act); hazardous substances (as defined in the Comprehensive Emergency Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act); gasoline or any other petroleum product or by-product or other hydrocarbon derivative; toxic substances, (as defined by the Toxic Substances Control Act); insecticides, fungicides or rodenticide, (as defined in the Federal Insecticide, Fungicide, and Rodenticide Act); asbestos and radon and substances determined to be hazardous under the Occupational Safety and Health Act or regulations promulgated thereunder. Notwithstanding the foregoing, Tenant shall not be in breach of this provision as a result of the presence in the Premises of minor amounts of hazardous or toxic materials which are in compliance with all applicable laws, ordinances and regulations and are customarily present in a general retail use (e.g., computer chemicals, and janitorial supplies). (b) Without limiting in any way Tenant's obligations under any other provision of this Lease, Tenant and its successors and assigns shall indemnify, protect, defend (with counsel approved by Landlord) and hold Landlord, its partners, officers, directors, shareholders, employees, agents, lenders, contractors and each of their respective successors and assigns (the "Indemnified Parties") harmless from any and all claims, damages, liabilities, losses, costs and expenses of any nature whatsoever, known or unknown, contingent or otherwise (including, without limitation, attorneys' fees, litigation, arbitration and administrative proceedings costs, expert and consultant fees and laboratory costs, as well as damages arising out of the diminution in the value of the Premises or any portion thereof, damages for the loss of the Premises, damages arising from any adverse impact on the marketing of space in the Premises and sums paid in settlement of claims), which arise during or after the Term in whole or in part as a result of the presence or suspected presence of any hazardous or toxic materials, in, on, under, from or about the Premises due to Tenant's acts or omissions, on or about the Premises, unless such claims, damages, liabilities, losses, costs and expenses arise out of or are caused by the negligence or willful misconduct of 21 any of the Indemnified Parties. Landlord and its successors and assigns shall indemnify and hold Tenant and its successors and assigns harmless against all such claims or damages if arising out of or caused by the negligence or willful misconduct of Landlord, its agents or employees. The indemnities contained herein shall survive the expiration or earlier termination of this Lease. 63. Authority. If Tenant executes this Lease as a corporation, limited partnership, limited liability company or any other type of entity, each of the persons executing this Lease on behalf of Tenant does hereby personally represent and warrant that Tenant is a duly organized and validly existing corporation, limited partnership, limited liability company or other type of entity, that Tenant is qualified to do business in the state where the Building is located, that Tenant has full right, power and authority to enter into this Lease, and that each person signing on behalf of Tenant is authorized to do so. In the event any such representation and warranty is false, all persons who execute this Lease shall be individually, jointly and severally, liable as Tenant. Upon Landlord's request, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord confirming the foregoing representations and warranties. 64. Miscellaneous. No agreement to accept a surrender of the Leased Premises shall be valid unless in writing signed by Landlord. The delivery of keys to any employee of Landlord or of Landlord's agents shall not operate as a termination of this Lease or a surrender of the Leased Premises. The failure of Landlord to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of this Lease, or of any rule or regulation, shall not prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach. No provision of this Lease shall be deemed to have been waived by Landlord, unless such waiver be in writing and signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check nor any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy provided in this Lease. This Lease contains the entire agreement between the parties, and any agreement hereafter made shall be ineffective to change, modify or discharge it in whole or in part, unless such agreement is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. 65. Governing Law The laws of the State in which the Leased Premises is located shall govern the interpretation, validity, performance and enforcement of this Lease. If any provision of this Lease should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Lease shall not be affected hereby. 66. Sale. In the event the original Landlord hereunder, or any successor owner of the Shopping Center, shall sell or convey the Shopping Center, all liabilities and obligations on the part of the original Landlord, or such successor owner, under this Lease accruing thereafter shall terminate, and thereupon all such liabilities and obligations shall be binding upon the new owner. Tenant agrees to attorn to such new owner. 22 67. Limitation of Liability, Landlord's obligations and liability with respect to this Lease shall be limited solely to Landlord's interest in the Shopping Center, as such interest is constituted from time to time, and neither Landlord nor any partner of Landlord, or any officer, director, shareholder, or partner or member of any partner or member of Landlord, shall have any individual or personal liability whatsoever with respect to this Lease. 68. CONFESSION OF JUDGMENT (A) ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD IS HEREBY IRREVOCABLY AUTHORIZED AND EMPOWERED TO APPEAR FOR TENANT IN ANY ACTION TO CONFESS JUDGMENT AGAINST TENANT, AND MAY SIGN FOR TENANT AN AGREEMENT, FOR WHICH THIS LEASE SHALL BE HIS SUFFICIENT WARRANT, FOR ENTERING IN ANY COMPETENT COURT AN ACTION OR ACTIONS IN EJECTMENT, AND IN ANY SUITS OR IN SAID ACTIONS TO CONFESS JUDGMENT AGAINST TENANT AS WELL AS ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE PREMISES. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ANY ONE OR MORE EXERCISES THEREOF, BUT JUDGMENT MAY BE CONFESSED FROM TIME TO TIME AS OFTEN AS ANY EVENT SET FORTH IN THIS LEASE SHALL HAVE OCCURRED OR BE CONTINUING. SUCH POWERS MAY BE EXERCISED DURING AS WELL AS AFTER THE EXPIRATION OR TERMINATION OF THE ORIGINAL TERM AND DURING AND AT ANY TIME AFTER ANY EXTENSION OR RENEWAL OF THE TERM, AND/OR (B) IF TENANT SHALL DEFAULT IN THE PAYMENT OF RENT RESERVED OR PAYABLE HEREUNDER OR IN THE PAYMENT OF ANY OTHER SUMS DUE HEREUNDER BY TENANT, TENANT HEREBY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR TENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR SAID RENT AND SAID OTHER SUMS; AND TO SIGN FOR TENANT AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION OR ACTIONS FOR THE RECOVERY OF SAID RENT AND OTHER SUMS, AND IN SAfD SUITS OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST TENANT FOR ALL OR ANY PART OF SAID RENT AND SAID OTHER SUMS, INCLUDING, BUT NOT LIMITED TO, THE AMOUNTS DUE FROM TENANT TO LANDLORD UNDER EACH OF THE SUBSECTIONS OF THIS SECTION AND FOR INTEREST AND COSTS, TOGETHER WITH A REASONABLE ATTORNEY'S COMMISSION FOR COLLECTION OF NOT LESS THAN FIVE THOUSAND DOLLARS ($5,000). SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM Tllt?>iE TO TIME AS OFTEN AS ANY OF SAID RENT AND OTHER SUMS SHALL FALL DUE OR BE IN ARREARS AND SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE TERM OF THIS LEASE, THIS LEASE PROVIDES FOR THE CONFESSION OF JUDGMENT AGAINST TENANT FOR MONEY AND FOR EJECTMENT. IN CONNECTION THEREWITH, TENANT, KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND UPON ADVICE OF SEPARATE COUNSEL, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF 23 PENNSYLVANIA. WITHOUT LIMITATION OF THE FOREGOING, TENANT HEREBY SPECIFICALLY WAIVES ALL RIGHTS TENANT HAS OR MAY HAVE TO NOTICE AND OPPORTUNITY FOR A HEARING PRIOR TO EXECUTION UPON ANY JUDGMENT CONFESSED AGAINST TENANT BY LANDLORD HEREUNDER. TENANT (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF LANDLORD HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LANDLORD WILL NOT SEEK TO EXERCISE OR ENFORCE ITS RIGHTS TO CONFESS JUDGMENT HEREUNDER, AND (Ii) ACKNOWLEDGES THAT TIME EXECUTION OF THIS LEASE BY LANDLORD HAS BEEN MATERIALLY INDUCED BY, AMONG OTHER THINGS, THE INCLUSION IN THIS LEASE OF SAID RIGHTS TO CONFESS JUDGMENT AGAINST TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS SAID PROVISIONS WITH TENANT'S INDEPENDENT LEGAL COUNSEL AND THAT THE MEANING AND EFFECT OF SUCH PROVISIONS HAVE BEEN FULLY EXPLAINED TO TENANT BY SUCH COUNSEL, AND AS EVIDENCE OF SUCH FACT AN AUTHORIZED OFFICER OF TENANT SIGNS HIS OR HER INITIALS IN THE SPACE PROVIDED BELOW. s ,- a (Initials) 69. Tenant's Gross Saies! Saies Reports anti R rorrtc. TntentinnAv Vi-ft Blank 70. Percentage Rent. Intentionally Left Blank IN WITNESS WHEREOF, the parties hereto are executing this Lease on the date first written above. By signing below, all parties agree to be bound by all terms and conditions set forth in the lease form to which this Addendum is attached. Landlord: Witnessed or Attested By: f .y A PR REAL ESTATE, LLC & HOME ELITE, LTD--4,S-TE--ANTS- N CQIuLN?N By: Name: =t- Title: w' ?.. - - - - Tenants: FOXY FrINFSS, LLC A CONTOURS EXPRESS FRANCHISEE Bv: b 24 ?. Name: EXHIBIT "'A" PROPERTY [ATTACH SHOPPING CENTER SITE PLAN] 25 EXHIBIT "A- I " PREMISES [ATTACH PLAN SHOWING PREMISES BY DIAGONAL LINES] Error! Unknown document property name. EXHIBIT "B" INTENTIONALLY LEFT BLANK Error? Unknown document property name. WORK LETTER AGREEMENT B-1 SCHEDULEI Landlord's Work Space to be demised between Suites 18 & 19 and wall shall be paint ready. Also, removal of the middle wall/partition. B-2 Error! Unknown document property'name. F- SCHEDULEII Plan Delivery Date: N/A Contractor Selection Date: N/A Possession Turnover Date: N/A Tenant Improvement Allowance: NONE B-3 Error! Unknown document property name. EXHIBIT "C" COMMENCEMENT DATE/ACCEPTANCE LETTER INTENTIONALLY LEFT BLANK C-1 Error? Unknown document property name. PINTZUK BROWN REALTY GROUP VIA US MAIL Tammy Sisto & Rebecca Fox Foxy Fitness, LLC 1916 County Line Road York Springs, PA 17372 RE: Memorandum of Lease. Term - Delivery of Possession - East Gate Plaza Tammy and Rebecca: This letter shall serve to memorialize the date which Delivery of Possession for your Leased Premises occurred. Pursuant to your Lease dated June 30, 2005 the date for Delivery of Possession occurred on August 19, 2005. Although the Lease Agreement called for Rent Commencement to occur Sixty (60) Days following Delivery of Possession, the Landlord has agreed to extend the Rent Commencement Date to November 1, 2005. Please acknowledge your acceptance of this letter and return an original signed copy to me at the letterhead address. This letter shall become Exhibit C of your Lease, Please attach it as such. Thank You, ILI AlaY /ff R. Christopher Datz, Director of Asset Management Services Acknowledged Foxy Fitness, LLC Tammy Sisto -V G ebecca Fox 491 Old York Road, Suite 200 • Jenkintown, PA 19046 Office: 215-881-8980 Fax: 215-881-8983 • Web: www.pbrginc.com I. EXHIBIT "D" USE RESTRICTIONS Notwithstanding any other provision of this Lease, and without in any way expanding the use of the Premises permitted hereunder, Tenant acknowledges and agrees that its use of the Premises is subject to and will not violate the restrictions and exclusives set forth hereinbelcw: TENANT SHALL HAVE THE EXCLUSIVE RIGHT TO OPERATE A WOMEN'S FITNESS CENTER. D-1 Error! Unknown document property name. f. EXHIBIT "E" RULES AND REGULATIONS Rules and Re-aulations 1. No radio or television or other similar devices shall be installed without first obtaining in each instance Landlord's consent in writing. No aerial shall be erected on the roof or exterior walls of the Leased Premises, or on the grounds, without in each instance, the written consent of Landlord. Any aerial so installed without such written consent shall be subject to removal without notice at any time at Tenant's expense. 2. No loud speakers, televisions, phonographs, radios or other devices shall be used in a manner so as to be heard or seen outside of the Leased Premises without the prior written consent of Landlord. 3. If the Leased Premises are equipped with heating facilities separate from those in the remainder of the Shopping Center, Tenant shall keep the Leased Premises at a temperature sufficiently high to prevent freezing of water in pipes and fixtures. 4. The outside areas immediately adjoining the Leased Premises shalt be kept clean and free from snow, ice, dirt and rubbish by Tenant to the satisfaction of the Landlord, and Tenant shall not place or permit any obstructions or merchandise in such areas. 5. The plumbing facilities shall not be used for any other purpose than that for which they are constructed, and no foreign substance of any kind shall be thrown therein, and the expense of any breakage, stoppage, or damage resulting from a violation of this provision shall be bome by Tenant. 6. Tenant shall not burn any trash or garbage of any kind in or about the Leased Premises, the Shopping Center, or within one mile of the outside property lines of the Shopping Center. 7. All deliveries or shipments of any kind to and from the Leased Premises, including loading of goods, shall be made only by way of the rear of the Leased Premises or at any other location designated by Landlord, and only at such reasonable time designated for such purpose by Landlord. 8. Tenant shall not use the public or common areas in the Shopping Center for business purposes or special events unless prior approval in writing has been granted by the Landlord. 9. Tenant shall use, at Tenant's cost, a pest extermination contractor at such intervals as Landlord may require, but no less often than once annually. 10. Tenant shall not place, or permit, displays, decoration or shopping carts on the sidewalk in front of the Leased Premises or upon any of the common areas of the Shopping Center. 11. Tenant shall not cause or permit any unusual or objectionable odors to be produced upon or within, or released from, the Leased Premises. F-1 Error! Unknown document property name. EXHIBIT T" UTILITIES A) Tenant shall be responsible for their share of water usage and sewer billed on a quarterly or monthly basis and shall contract directly for such service. B) Tenant shall contract directly with the local provider of gas and electric service to the leased premises. F-2 Error! Unknown document property name. 1• EXHIBIT "G" SIGN CRITERIA INTENTIONALLY LEFT BLANK Error'. Unknown document property name. G-1 1. EXHIBIT "H" FORM OF GUARANTY TAMMY SISTO AND REBECCA FOX SHALL PERSONALLY GUARANTEE THE FINANCIAL OBLIGATIONS OF THIS LEASE FOR A PERIOD OF TWO YEARS FROM THE RENT COMMENCEMENT DATE. H-1 Error! Unknown document property name. 0. EXHIBIT "I" STATE/LOCAL LAW PROVISIONS TTENTIONALLY LEFT BLANK I-1 Error! Unknown document property name. EXHIBIT °7" SPECIAL STIPULATIONS INTENTIONALLY LEFT BLANK I-2 Error'. Unknown document property name. ,V CERTIFICATE OF SERVICE AND NOW, this 24`h day of March, 2008, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Petition to Strike-Off and/or Open Judgment by Confession by mailing a true and correct copy via United States first class mail, addressed as follows: Frank G. Murphy, Esquire Frey, Petrakis, Deeb, Blum & Murphy, P.C. 1601 Market Street, Suite 2600 Philadelphia, PA 19103 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery S ri ?-`` r? ?? ?.a ? ? 4' .? ? t'?:? ::n.?, ..?` -v:?- :?' r z . --,? `_"? .. .? i? ? HOME ELITE LIMITED IN THE COURT OF COMMON PLEAS OF and P.R. REAL ESTATE, CUMBERLAND COUNTY, PENNSYLVANIA LLC, Plaintiff : V. CIVIL ACTION - LAW FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO and REBECCA FOX, Defendant NO. 08-841 CIVIL TERM IN RE: PETITION OF DEFENDANT TAMMY SISTO TO STRIKE OFF AND/OR OPEN CONFESSED JUDGMENT BEFORE OLER, J. ORDER OF COURT AND NOW, this 25`h day of April, 2008, upon consideration of the Petition of Defendant Tammy Sisto To Strike Off and/or Open Confessed Judgment, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendant Tammy Sisto is not entitled to the relief requested; 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Oral argument shall be held on Tuesday, July 15, 2008, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania; 6-z • Y 6. Briefs shall be submitted at least seven days prior to argument. Frank G. Murphy, Esq. Frey, Petrakis, Deeb, Blum & Murphy, P.C. 1601 Market Street Suite 2600 Philadelphia, PA 19103 Attorney for Plaintiff ? / Mark K. Emery, Esq. 410 North Second Street Harrisburg, PA 17101 Attorney for Defendant rc A1119166 BY THE COURT, J. esley Ole J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. 08-841 PLAINTIFFS' ANSWER TO DEFENDANT, TAMMY SISTO'S, PETITION TO STRIKE OFF OR OPEN JUDGMENT Plaintiffs, Home Elite, Ltd., Inc. and P.R. Real Estate, LLC, (hereinafter "Plaintiffs" or "Respondents"), by and through their undersigned counsel, hereby submit their Answer to the Petition to Strike Off and/or Open Judgment (the "Petition") filed by Defendant, Tammy Sisto, (hereinafter "Defendant" or "Petitioner") as follows: 1. Denied. After reasonable investigation, Plaintiffs are without information or knowledge sufficient to form a belief as to the truth of these averments; hence, these averments are denied. 2. Admitted. 3. Admitted. 4. Denied. This allegation is a conclusion of law to which no responsive pleading is required. To the extent a response is required, Plaintiffs do not object to the timeliness of the Petition. 5. Admitted. 6. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, it is admitted that Plaintiffs entered into the Lease with Foxy Fitness, LLC, t/a Contours Express on or about June 30, 2005. 7. Denied. Respondents did not draft the Lease. 8. Denied. The Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, the allegation is denied as stated. Respondents were designated therein as the "Landlord" and Foxy Fitness, LLC, a Contours Express Franchise was designated therein as the "Tenant." 9. Denied. The Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, the Lease at Paragraph 68, and not only 68(B), contains a confession of judgment clause. 10. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein, signed the Lease, and specifically initialed next to Paragraph 68. 11. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein, signed the Lease, and specifically initialed next to Paragraph 68. 2 12. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. 13. Denied. This allegation is a conclusion of law to which no responsive pleading is required. By way of further answer, the Lease in its entirety is clear and explicit and should not be construed against Respondents. 14. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. 15. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. By way of further answer, the lawful and proper confessed judgment against Petitioner must be upheld. 16. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. 3 17. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein, signed the Lease, and specifically initialed next to Paragraph 68. 18. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. By way of further answer, the confessed judgment against Petitioner is lawful and proper and must be upheld. 19. Denied. This allegation is a conclusion of law to which no responsive pleading is required. To the extent a response is required, the confessed judgment against Petitioner is lawful and proper and must be upheld. 20. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease, which provides for "attorney's commission for collection of not less than five thousand dollars ($5,000.00), is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, the fees and costs are reasonable and must be upheld. 21. Denied. This allegation is a conclusion of law to which no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. The confessed judgment against Petitioner is lawful 4 and proper and must be upheld. By way of further answer, there has been no wrongdoing, bad faith, breach, or unconscionable, unlawful, or improper action or inaction by Respondents. 22. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. The confessed judgment against Petitioner is lawful and proper and must be upheld. By way of further answer, there has been no wrongdoing, bad faith, breach, or unconscionable, unlawful, or improper action or inaction by Respondents. 23. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. The confessed judgment against Petitioner is lawful and proper and must be upheld. By way of further answer, there has been no wrongdoing, bad faith, breach, or unconscionable, unlawful, or improper action or inaction by Respondents. 24. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. The confessed judgment against Petitioner is lawful and proper and must be upheld. By way of further answer, 5 there has been no wrongdoing, bad faith, breach, or unconscionable, unlawful, or improper action or inaction by Respondents. 25. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. The confessed judgment against Petitioner is lawful and proper and must be upheld. By way of further answer, there has been no wrongdoing, bad faith, breach, or unconscionable, unlawful, or improper action or inaction by Respondents. 26. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. The confessed judgment against Petitioner is lawful and proper and must be upheld. By way of further answer, there has been no wrongdoing, bad faith, breach, or unconscionable, unlawful, or improper action or inaction by Respondents. 27. Denied. This allegation is a conclusion of law to which no responsive pleading is required. Further, the Lease is a document which speaks for itself and, as such, no responsive pleading is required. To the extent a response is required, this allegation is denied. Petitioner, Tammy Sisto, and Co-Defendant, Rebecca Fox, personally guaranteed the Lease and the obligations therein. The confessed judgment against Petitioner is lawful and proper and must be upheld. By way of further answer, 6 there has been no wrongdoing, bad faith, breach, or unconscionable, unlawful, or improper action or inaction by Respondents. WHEREFORE, Plaintiffs, Home Elite, Ltd., Inc. and P.R. Real Estate, LLC, respectfully request that this Honorable Court deny the Petition to Strike Off and/or Open Judgment and allow the Judgment to stand as is. DEEB, PETRAKIS, BLUM & MURPHY, P.C. By: LIf IVY 17V / Frank G. Murphy, sq ' (ID No. 65886) Christina M. Hughes, squire (ID No. 91635) 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 Attorneys for Plaintiffs, Home Elite Ltd., Inc. and P. R. Real Estate, LLC Dated:5/ 14/08 7 VERIFICATION I, Christina M. Hughes, Esquire, hereby state that I am authorized to make this Verification pursuant to Pa.R.Civ.P. 1024(c) as a representative of Plaintiffs. Plaintiffs are outside the jurisdiction of the Court and a verification cannot be obtained within the time allowed for filing this pleading. I further state that the statements made in the foregoing Answer are true and correct to the best of my knowledge, information, and belief. I understand that the statements herein are made subject to the penalties relating to unsworn falsification to authorities. -dwrAlkok' CHRISTINA M. HfJGJS Dated: May 14, 2008 DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. Attorneys for Plaintiffs, Home Elite Ltd., Inc. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW FOXY FITNESS, LLC, t/a Docket No. 08-841 CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants CERTIFICATE OF SERVICE I, Christina M. Hughes, Esquire, hereby certify that, on May 14, 2008, I caused a copy of the within Answer to Petition to Strike Off and/or Open Judgment to be served, via first class mail, postage pre-paid, upon the following parties: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Attorney for Petitioner CHRISTINA M. HUG ES r-O a? ca 73 un { )-t w HOME ELITE LIMITED and P.R. REAL ESTATE, LLC, Plaintiffs vs. FOXY FITNESS, LLC, TEA CONTOURS EXPRESS, TAMMY SISTO and REBECCA FOX, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-841 CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION OF DEFENDANT REBECCA FOX TO STRIKE-OFF AND/OR OPEN CONFESSED JUDGEMENT AND NOW, comes the Defendant/Petitioner Rebecca Fox, by and through her attorney, Mark K. Emery, Esquire, and files this Petition to Strike-Off and/or Open Confessed Judgement, as follows: 1. Defendant/Petitioner Rebecca Fox (hereinafter "Petitioner"), is an adult individual currently residing in Denver, Colorado. 2. Co-Defendant Tammy Sisto has previously filed a Petition to Strike-Off and/or Open Judgment, raising the same defenses as set forth herein. 3. Pursuant to the Petition filed by Defendant Sisto, the Court, through the Honorable J. Wesley Oler, Jr., issued an Order on April 25, 2008. A copy o such Order is attached hereto as Exhibit "A". 4. Pursuant to the Order of Court, argument on Defendant Sisto's Petition is scheduled before Judge Oler on July 15, 2008. 5. Plaintiffs/Respondents Home Elite Limited and P. R. Real Estate, LLC (hereinafter "Respondents"), upon information and belief, are a Pennsylvania Corporation and a I h Pennsylvania Limited Liability Company. 6. On or about February 5, 2008 Respondents filed a Complaint for Confession of Judgment against all Defendants. 7. Notice of the Complaint and entry of judgment was served upon Petitioner on or about April 26, and therefore this Petition is timely filed pursuant to Pa. R.C.P. 2959. 8. Respondents are the owners of a shopping center known as East Gate Plaza, located in Mechanicsburg, Pennsylvania. 9. On or about June 30, 2005, Respondents entered into a Lease Agreement (hereinafter "Lease") with Defendant Foxy Fitness, LLC. A copy of said Lease Agreement was attached and incorporated as Exhibit "B" in Respondent's Complaint for Confession of Judgement, and is attached hereto as Exhibit "B". 10. The Lease was drafted and prepared solely by Respondent. 11. Within said Lease, Respondent was identified as "Landlord" and Defendant Foxy Fitness, LLC, only, was identified as "Tenant". 12. The Lease, at Paragraph 68 (B), contained a confession of judgement clause. 13. The confession of judgement clause referred solely to "Tenant", identified within the Lease only as Foxy Fitness, LLC. 14. The Lease was signed solely by Foxy Fitness, LLC, through its members, Rebecca Fox and Tammy Sisto. 15. Nowhere within the Lease did Petitioner sign in her individual capacity. 16. The Lease, particularly the confession of judgement clause, must be clear and explicit, and strictly construed against Respondents. 2 17. As Petitioner is not a party to the Lease, the confession of judgement clause cannot be enforced against her individually. 18. As the face of the record establishes that Petitioner was not a party to the Lease, the confessed judgment against her must be stricken. 19. The Lease attempts to create a guarantee obligation by Sisto for a period of two (2) years at the commencement of the Lease. 20. Said guarantee is not effective as the guarantee clause is contained solely as an Exhibit, and is not signed by either Tammy Sisto or Rebecca Fox in their individual capacity. 21. Assuming, arguendo, that such guarantee applied, such guarantee does not create a personal obligation of Petitioner under the confession of judgement clause, nor a right in Respondent to obtain a judgment by confession against Petitioner. 22. Confession of judgment clauses must be included in the actual guarantee agreement to be enforceable against the guarantor. 23. Respondent's request of $5,000.00 in attorney's fees is grossly excessive, and should be struck. 24. Respondents filed their Complaint for Confession of Judgement, and entered a judgement against Petitioner, with the knowledge that said confession of judgement clause was not applicable to Petitioner. 25. Respondent entered judgment by confession against Petitioner in a bad faith attempt to obtain an unfair and oppressive advantage in attempting to collect from Petitioner for payment of the corporate Defendant's alleged debt, with Respondent being aware that such corporate entity has limited assets available to make payment on any such debt. 26. Respondents filed their complaint for confession of judgment without sufficient legal basis or probable cause, and not for a proper purpose, in violation of both 42 Pa. C. S.A. §2737.1 and 42 Pa.C.S.A. §8351. 27. Respondents' conduct is a breach of their duty of good faith and fair dealing. 28. The enforcement of the confession of judgment clause against Petitioner would be unconscionable. 29. The enforcement of the confession of judgment clause against Petitioner would be in violation of her rights to due process. 30. The enforcement of the confession of judgment clause against Petitioner would be in violation of her rights and protections afforded to her under consumer financing agreements. WHEREFORE, Petitioner Rebecca Fox respectfully requests this Honorable Court strike- off and/or open the confessed judgement, and further award all costs and attorney's fees to Petitioner. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: Mark K. Emery, Esquire Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 Attorney for Defendant/Petitioner Tammy Sisto DATE: May 27, 2008 4 VERIFICATION I, Mark K. Emery, Esquire, hereby verify the information contained within Petition to Strike-Off and/or Open Judgment is true and correct to the best of my knowledge, information and belief. This verification is provided pursuant to Pa. R.C.P. 1024(c) as the Petitioner is not available to provide her verification in the time allowed for the filing of this pleading. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Mark K. Emery, Esquire DATE: May 27, 2008 HOME ELITE LIMITED and P.R. REAL ESTATE, LLC, Plaintiff V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO and REBECCA FOX, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-841 CIVIL TERM IN RE: PETITION OF DEFENDANT TAMMY SISTO TO STRIKE OFF AND/OR OPEN CONFESSED JUDGMENT BEFORE OLER, J. ORDER OF COURT AND NOW, this 25`h day of April, 2008, upon consideration of the Petition of Defendant Tammy Sisto To Strike Off and/or Open Confessed Judgment, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendant Tammy Sisto is not entitled to the relief requested; 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Oral argument shall be held on Tuesday, July 15, 2008, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania; 4 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, ? G J. /Wesley Ole ., J. Frank G. Murphy, Esq. Frey, Petrakis, Deeb, Blum & Murphy, P.C. 1601 Market Street Suite 2600 Philadelphia, PA 19103 Attorney for Plaintiff M K. Emery, Esq. 0 North Second Street Harrisburg, PA 17101 Attorney for Defendant :rc 7 ?. V w?. Rii lflG This Agreement is made on JUNE'S . 2005 BETWEEN PR REAL ESTATE, LLC & HOME ELITE, LTD. AS TENANTS IN COMMON residing or located at c% Ptzuk Brown Realty Group, Inc, 491 Old York Road, Suite 200, Jenkintown, PA 190405 herein designated as the "Landlord," AND FOXY FITNESS, LLC, A CONTOURS EXPRESS FRANCHISEE residing or located at 1916 COUNTY LINE ROAD, YORK SPRINGS, PA 17372 herein designated as the "Tenant." 1. Leased Premises. The Landlord does hereby lease to the Tenant and the Tenant does hereby rent from the Landlord, the Leased Premises (also know n as the "Premises'") as described in the Basic Lease Provisions, supra. 2. Term. The Landlord does hereby lease to the Tenant and the Tenant does hereby rent from the Landlord, the Leased Premises for the Term as described in the Basic Lease Provisions, supra. 3. Use of Premises and Common Areas. Tenant shall in good faith continuously throughout the Term of this Lease conduct and carry on in the entire Premises the type of business described in Article 15 of the Basic Lease Provisions using Tenant's trade name, and the Premises shall not be used for any other purpose. Tenant specifically agrees that its use of the Premises shall never violate any of the restrictions set forth on Exhibit "D" attached hereto. Tenant shall not sell, display or solicit sales in the Common Areas. Tenant shall not use or permit the use of any vending machines or public telephones on, at, or about the Premises without the prior written consent of Landlord. Tenant shall not commit waste, perform any acts or carry on any practices which may injure the Shopping Center or be a nuisance or menace to other tenants in the Shopping Center. Tenant shall operate its business in a dignified manner and in accordance with high standards of store operation so as to maintain a character in keeping with the rest of the Shopping Center, and so as to maximize Tenant's gross sales and shall, at all times when the Premises are open for business with the public, keep the Premises properly equipped with fixtures, stocked with an adequate supply of merchandise and attended by adequate personnel. In the use and occupancy of the Premises and with respect to conditions created at Tenant's request, or as a result of Tenant's performance or breach of any of its obligations hereunder or any fault of Tenant, Tenant shall, at Tenant's expense, comply with all laws and ordinances and all valid rules and regulations and all directives, orders and citations of federal, state, county and municipal authorities having jurisdiction over the Premises, including without limitation the Americans with Disabilities Act and all requirements of any insurance company and any public or private agency having authority over insurance rates. 4. Rent. The Tenant agrees to pay Rent and Additional Rent to Landlord per the schedule shown in Article 6 and 12 of the Basic Lease Provisions, supra. Rent is due on the fast day of each month. The first payment of Base Rent, Additional Rent, and Security Deposit are due upon the signing of the Lease by the Tenant. The Tenant must pay a late charge of ten percent as additional rent for each payment that is more than 10 days late. This late charge is due with the monthly rent payment. The Tenant must also pay a fee of $50.00 as additional rent for any dishonored check. 5. Late Charge. Other remedies for non-payment of Rent notwithstanding, if any monthly installment of Rent or percentage rent or Additional Rent is not received by Landlord on or before the date due, or if any payment due Landlord by Tenant which does not have a scheduled due date is not received by Landlord on or before the tenth (10th) day following the date Tenant's rent was due therefore, a late charge of ten percent (10%) of such past due amount shall be immediately due and payable as Additional Rent hereunder and interest shall accrue on all delinquent amounts from the date past due until paid at the lower of a rate of one and one-half percent (1-1/2%) per month or fraction thereof from the date such payment is due until paid (Annual Percentage Rate = 18%), or the highest rate perrrutted by applicable law. 6. Partial Payment. No payment by Tenant or acceptance by Landlord of an amount less than the Rent herein stipulated shall be deemed a waiver of any other Rent due. No partial payment or endorsement on any check or any letter accompanying such payment of Rent shall be deemed an accord and satisfaction, but Landlord may accept such payment without prejudice to Landlord's right to collect the balance of any Rent due under the terms of this Lease or any late charge assessed against Tenant hereunder. 7 Repairs/Alterations-The Tenant has examined the Leased Premises and has entered into this Lease without any representation on the part of the Landlord as to the condition thereof. (a) Repairs By Landlord. Landlord shall keep the foundation, the roof and the exterior walls of the Premises (except plate glass, doors, door closures, door frames, store fronts, windows and window frames located in exterior building walls) in good repair, and Tenant shall pay, as additional rent, the cost of any such repairs occasioned by the act or neglect of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, and the cost to repair any damage caused by or as a result of Tenant's occupancy of Premises, or any damage caused by break-in, burglary, or other similar acts in or to the Premises, within ten (10) days after demand for payment by Landlord. In the event that the Premises should become in need of repairs required to be made by Landlord hereunder, Tenant shall give immediate written notice thereof to Landlord, and Landlord shall not be responsible in any way for failure to make any such repairs until a reasonable time shall have elapsed after the giving of such written notice. Landlord may elect by giving notice thereof to Tenant, to require Tenant within a reasonable time and at Tenant's expense, to make any repairs that Landlord is required to make at Tenant's expense under this Section, and in such event Tenant shall not be required to pay the cost thereof to Landlord as additional rent. (b) Repairs By Tenant_ Tenant shall, at its sole cost and expense, keep the Premises in a safe, .sightly, and serviceable condition; Tenant shall at its sole cost and expense supply a dumpster for Tenants Trash ; Tenant shall keep the premises free from any infestation by insects, rodents, or other pests, and, except as provided in this Section , make all needed maintenance, repairs, and replacements for the proper operation of Tenant's business within the Premises, including all maintenance, repairs, and replacements to: (i) the heating, ventilating, and air conditioning systems serving the Premises; (ii) the exterior and interior portion of all doors, windows, window frames, plate glass, door closures, door frames and store fronts including exterior signage; (iii) all plumbing and sewage facilities within the Premises, including free flow up to the connection to the main sewer line, grease traps, sprinkler systems; (iv) all fixtures within the Premises; (v) all electrical systems serving the Premises (whether or not located within the Premises); (vi) all sprinkler systems serving the Premises; (vii) all interior walls, floors, and ceilings; (viii) any of the Tenant's Work; (ix) all repairs, replacements, or alterations required by any governmental authority; and (x) all necessary repairs and replacements of Tenant's trade fixtures required for the proper conduct and operation of Tenant's business. If at any time and from time to time during the Term, and any extensions and renewals thereof, Tenant shall fail to make any maintenance, repairs, or replacements in and to the Premises as required in this Lease, Landlord shall have the right, but not the obligation, to enter the Premises and to make such maintenance, repairs, and replacements for and on behalf of Tenant, and all sums expended by Landlord for such maintenance, repairs, and replacements shall be deemed to be additional rent hereunder and shall be payable to Landlord upon demand. At the termination of this Lease, Tenant shall surrender the Premises in good condition, reasonable wear and tear and loss by fire or other casualty alone excepted. Tenant shall keep in force a standard maintenance agreement on all heating, ventilating, and air conditioning systems serving the Premises with a reputable heating and air conditioning service organization which shall be subject to Landlord's approval and shall provide a copy of said maintenance agreement to Landlord for its approval. & Compliance with Laws etc. The Tenant shall promptly comply with all laws, ordinances, rules, regulations, requirements and directives of the Federal, State and Municipal Govennnvnts or Public Authorities and of all their departments, bureaus and subdivisions, applicable to and affecting the said premises, their use and occupancy, (including, without limitation, the Americans with Disabilities Act) for the correction, prevention and abatement of nuisances, violations or other grievances in, upon or connected with the said premises, during the term hereof; and shall promptly comply with all orders, regulations, requirements and directives of the Board of Fire Underwriters or similar authority and of any insurance companies which have issued or are about to issue policies of insurance covering the said premises and its contents, for the prevention of fire or other casualty, damage or injury, at the Tenant's own cost and expense. 9. Assignment The Tenant shall not assign, mortgage or hypothecate this Lease, nor sublet or sublease the Leased Premises or any part thereof, nor occupy or use the Leased Premises or any part thereof, nor permit or suffer the same to be occupied or used for any purposes other than as herein limited, nor for any purpose deemed unlawful, disreputable, or extra hazardous, on account of fire or other casualty. 10. Destruction or Damage by Casualty. (a) Tenant shall give immediate written notice to Landlord of any damage to the Premises caused by fire or other casualty, and if Landlord does not elect to terminate this Lease as hereinafter provided, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Premises. Notwithstanding the foregoing, in the event that: (i) the insurance proceeds payable in connection with such damage and destruction shall be insufficient to make such restoration; (ii) the building in which the Premises are located shall be destroyed or substantially damaged by casualty not covered by standard fire or extended coverage insurance; (iii) such building shall be destroyed or rendered untenantable by any casualty to the extent of at least fifty percent (50%) of the Rentable Area of such building; (iv) Landlord shall not have actual and unconditional receipt of the insurance proceeds payable in connection with such damage and destruction; (v) the holder of any mortgage, deed to secure debt, deed of trust, or other instrument in the nature thereof which encumbers Landlord's interest hereunder or in the Premises shall require that such proceeds shall be applied against any indebtedness owed to such holder; or (vi) there shall be less than two (2) years remaining in the Term, or any extension or renewal thereof, then, in any of such events, Landlord may elect either to terminate this Lease or to proceed to rebuild and repair the Premises. Landlord shall give written notice to Tenant of such election within ninety (90) days after the occurrence of such casualty. (b) Landlord's obligation to rebuild and repair the Premises under this Section shall in any event be limited to restoring Landlord's work to substantially the condition in which the same existed prior to the casualty, and Tenant agrees that promptly after the completion of such work by Landlord, Tenant will proceed with reasonable diligence and at Tenant's sole cost and expense to restore Tenant's work and all alterations, additions and improvements done by Tenant within the Premises to substantially the condition in which the same existed prior to the casualty. (c) Tenant agrees that during any period of reconstruction or repair of the Premises, it will continue the operation of its business within the Premises to the extent practicable. During the period from the occurrence of a casualty until Landlord's repairs are completed, the Minimum Rent (but not Percentage Rent) shall be reduced and abated in proportion to the amount of Rentable Area of the Premises which is rendered untenantable as a result of such casualty; provided, however, that if such damage or destruction is caused by the intentional or negligent acts or omissions of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, then, and in that event, the Minimum Rent shall not abate. Tenant shall not be entitled to and hereby waives, releases, and relinquishes any and all claims against Landlord for any compensation or damage for loss of use of all or any part of the Premises or for any inconvenience or annoyance occasioned by any such damage, destruction, repair. or restoration of the Premises. (d) Tenant agrees at all times at its expense to keep its merchandise, fixtures, Tenant's Work, all alterations, additions and improvements done by Tenant within the Premises and Tenant's other property situated within its Premises insured by "All Risk" insurance in an amount equal to its full replacement value. Such insurance shall be carried with companies reasonably satisfactory to Landlord. Such insurance shall be non-cancelable and non-amendable except after ten (10) days written notice to Landlord. Such policies or duly executed certificates of insurance with respect thereto shall be delivered to Landlord, together with evidence of payment of the premium therefore, prior to the Rent Commencement Date and renewals thereof as required shall be delivered to Landlord at least thirty (30) days prior to the expiration of the respective policy terms. The proceeds of such insurance shall be payable to Landlord and Tenant, jointly, for use by Tenant only, except with the consent of Landlord, for the repair or replacement of merchandise, fixtures, Tenant's Work, or other property which was situated within the Premises. (e) In the event that fifty percent (50%) or more of the Rentable Area of the Shopping Center shall be destroyed or substantially damaged by any casualty, notwithstanding that the Premises may be unaffected by such casualty, Landlord may terminate this Lease by giving the Tenant thirty (30) days prior written notice of Landlord's election to do so, which notice shall be given, if at all, within ninety (90) days following the date of such occurrence. Rent shall be adjusted as of the date of such termination. 11. Damage or Theft of Personal Property. All personal property brought into the Premises shall be at the risk of the Tenant only and Landlord shall not be liable for theft thereof or any damage thereto occasioned by any acts of co-tenants, or other occupants of the Building, or any other person, except, with 6 respect to damage to the Premises, as may be occasioned by the grossly negligent or willful act of the Landlord, its employees and agents. 12. "As Is" The Tenant has inspected the Leased Premises and agrees that the Leased Premises is in satisfactory condition. The Tenant accepts the Leased Premises "as is." Notwithstanding the above, Landlord shall erect, at it's own expense a demising wall between suites 18 & 19 which will be delivered in paint ready condition. The Landlord shall also, at its own expense, remove the middle wall/partition located in the Leased Premises. 13. Alterations and/or Improvements. No alterations, additions or improvements shall be made, and no climate regulating, air conditioning, cooling, heating or sprinkler systems, television or radio antennas, heavy equipment, apparatus and fixtures, shall be installed in or attached to the Leased Premises, without the written consent of the Landlord. Unless otherwise provided herein, all such alterations, additions or improvements and systems, when made, installed in or attached to the said premises, shall belong to and become the property of the Landlord and shall be surrendered with the Leased Premises and as part thereof upon the expiration or sooner termination of this lease, without hindrance, molestation or injury. If Landlord gives its written consent to any such alterations, additions or improvements and systems, all work and improvements shall be performed by Tenant in accordance with applicable local, state and federal laws, including obtaining permits and a certificate of occupancy for the work and improvements. 14. Inspection and Repair. The Tenant agrees that the Landlord and the Landlord's agents, employees or other representatives, shall have the right to enter into and upon the said premises or any part thereof, at all reasonable hours, for the purpose of examining the same or making such repairs or alterations therein as may be necessary for the safety and preservation thereof. This clause shall not be deemed to be a covenant by the Landlord nor be construed to create an obligation on the part of the Landlord to make such inspection or repairs. 15. Right to Exhibit. The Tenant agrees to permit the Landlord and the Landlord's agents, employees or other representatives to show the Leased Premises to persons wishing to rent or purchase the same, and Tenant agrees that on and after 180 days next preceding the expiration of the term hereof, the Landlord or the Landlord's agents, employees or other representatives shall have the right to place notices on the front of said premises or any part thereof, offering the Leased Premises for rent or for sale; and the Tenant hereby agrees to permit the same to remain thereon without hindrance or molestation. 16. Glass, etc. IDarnage, Repairs. In case of the destruction of or any damage to the glass in the Leased Premises, or the destruction of or damage of any kind whatsoever to the said premises, caused by the carelessness, negligence or improper conduct on the part of the Tenant or the Tenant's agents, employees, guests, licensees, invitees, subtenants, assignees or successors, the Tenant shall repair the said damage or replace or restore any destroyed parts of the Leased Premises, as speedily as possible, at the Tenant's own cost and expense. 17. Signs. The Tenant shall not place nor allow to be placed any signs of any kind whatsoever, upon, in or about the said premises or any part thereof, except of a design and structure and in or at such places as may be indicated and consented to by the Landlord in writing. In case the Landlord or the Landlord's agents, employees or representatives shall deem it necessary to remove any such signs in order to paint or make any repairs, alterations or improvements in or upon said premises or any part thereof, they may be so removed, but shall be replaced at the Landlord's expense when the said repairs, alterations or improvements shall have been completed. Any signs permitted by the Landlord shall at all times conform with all municipal ordinances or other laws and regulations applicable thereto. 18. Non-Liability of Landlord. The Landlord shall not be liable for any damages or injury which may be sustained by the Tenant or any other person, as a consequence of the failure, breakage, leakage or obstruction of the water, plumbing, steam, sewer, waste or soil pipes, roof, drains, leaders, gutters, valleys, down-spouts or the like or of the electrical, gas, power, conveyor, refrigeration, sprinkler, air-conditioning or heating systems, elevators or hoisting 7 equipment; or by reason of the elements; or resulting from the carelessness, negligence or improper conduct on the part of any other Tenant or this or any other Tenant's agents, employees, guests, licensees, invitees, subtenants, assignees or successors; or attributable to any interference with, interruption of or failure, beyond the control of the Landlord, of any services to be famished or supplied by the Landlord. 19. Mortgage Priority. (a) Tenant agrees that this Lease shall be subject and subordinate: (i) to any mortgage, deed of trust or other security interest now encumbering the Shopping Center and to all advances which may be hereafter made, to the full extent of all debts and charges secured thereby and to all renewals or extensions of any part thereof, and to any mortgage, deed of trust or other security interest which any owner of the Shopping Center may hereafter, at any time, elect to place on the Shopping Center; (ii) to any assignment of Landlord's interest in the leases and rents from the Shopping Center which includes the Lease which now exists or which any owner of the Shopping Center may hereafter, at any time, elect to place on the Shopping Center; and (iii) to any Uniform Commercial Code Financing Statement covering the personal property rights of Landlord or any owner of the Shopping Center which now exists or any owner of the Shopping Center may hereafter, at any time, elect to place on the foregoing personal property (all of the foregoing instruments set forth in (i), (ii) and (iii) above being hereafter collectively referred to as "Security Documents"). Tenant agrees upon request of the holder of any Security Documents ("Holder") to hereafter execute any documents which the counsel for Landlord or Holder may reasonably deem necessary to evidence the subordination of the Lease to the Security Documents. Within ten (10) days after request therefore, if Tenant fails to execute any such requested documents, Landlord or Holder is hereby empowered to execute such documents in the name of Tenant evidencing such subordination, as the act and deed of Tenant, and this authority is hereby declared to be coupled with an interest and not revocable. (b) In the event of a foreclosure pursuant to any Security Documents, Tenant shall at the election of the Landlord, thereafter remain bound pursuant to the terms of this Lease as if a new and identical Lease between the purchaser at such foreclosure ("Purchaser'), as landlord, and Tenant, as tenant, had been entered into for the remainder of the Term hereof and Tenant shall attorn to the Purchaser upon such foreclosure sale and shall recognize such Purchaser as the Landlord under the Lease. Such attornment shall be effective and self-operative without the execution of any further instrument on the part of any of the parties hereto. Tenant agrees, however, to execute and deliver at any time and from time to time, upon the request of Landlord or of Holder, any instrument or certificate that may be necessary or appropriate in any such foreclosure proceeding or otherwise to evidence such attornment. (c) If the Holder of any Security Document or the Purchaser upon the foreclosure of any of the Security Documents shall succeed to the interest of Landlord under the Lease, such Holder or Purchaser shall have the same remedies, by entry, action or otherwise for the non-performance of any agreement contained in the Lease, for the recovery of Rent or for any other default or event of default hereunder that Landlord had or would have had if any such Holder hh interest oof succeeded Landlo d hereunder, not Landlord. Any such Holder or Purchaser which succeeds to be: (a) liable for any act or omission of any prior Landlord (including Landlord) unless such act or omission is of a continuing nature; or (b) subject to any offsets or defenses which Tenant might have against any prior Landlord (including Landlord); or (c) bound by any Rent which Tenant might have paid for more than the current month to any prior Landlord (including Landlord); or (d) bound by any amendment or modification of the Lease made without its consent. (d) Notwithstanding anything to the contrary set forth in this Section, the Holder of any Security Documents shall have the right, at any time, to elect to make this Lease superior and prior to its Security Document. No documentation, other than written notice to Tenant, shall be required to evidence that the Lease has been made superior and prior to such Security Documents, but Tenant hereby agrees to execute any documents reasonably requested by Landlord or Holder to acknowledge that the Lease has been made superior and prior to the Security Documents. 20. Security. The Tenant has this day deposited with the Landlord the sum as shown in Article 14 of the Basic Lease Provisions as security for the payment of the rent hereunder and the full and faithful performance by the Tenant of the covenants and conditions on the part of the Tenant to be performed. Said sum shall be returned to the Tenant, without interest, after the expiration of the term hereof, provided that the Tenant has fully and faithfully performed all such covenants and conditions and is not in arrears in rent. During the term hereof, the Landlord may, if the Landlord so elects, have recourse to such security, to make good any default by the Tenant, in which event the Tenant shall, on demand, promptly restore said security to its original amount. Liability to repay said security to the Tenant shall nun with the reversion and title to said premises, whether any change in ownership thereof be by voluntary alienation or as the result of judicial sale, foreclosure or other proceedings, or the exercise of a right of taking or entry by any mortgagee. The Landlord shall assign or transfer said security, for the benefit of the Tenant, to any subsequent owner or holder of the reversion or title to said premises, in which case the assignee shall become liable for the repayment thereof as herein provided, and the assignor shall be deemed to be released by the Tenant from all liability to return such security. This provision shall be applicable to every alienation or change in title and shall in no wise be deemed to permit the Landlord to retain the security after termination of the Landlord's ownership of the reversion or title. The Tenant shall not mortgage, encumber or assign said security without the written consent of the Landlord. 21. Increase of Insurance Rates. If for any reason it shall be impossible to obtain fire and other hazard insurance on the buildings and improvements on the Leased Prernises, at standard rates and in the form and in insurance companies reasonably acceptable to the Landlord, the Landlord may, if the Landlord so elects at any time thereafter, terminate this lease and the term hereof, upon giving to the Tenant fifteen days notice in writing of the this lease and the term thereof shall terminate. If by Landlord's intention so to do, and upon the giving of such notice, any reason of the use to which the Leased Premises are put by the Tenant or character of or the manner in which the Tenant's business is carved on, the insurance rates for fire and other hazards shall be increased, the Tenant shall upon demand, pay to the Landlord, as rent, the amounts by which the premiums for such insurance are increased. Such payment shall be paid with the next installment of rent but in no case later than one month after such demand, whichever occurs sooner. 22.. Utilities. The Tenant shall pay when due all the rents or charges for water, sewer, gas and electricity used by the Tenant, which are or may be assessed or imposed upon the Leased Premises or which are or may be charged to the Landlord by the suppliers thereof during the term hereof, and if not paid, such rents or charges shall be added to and become payable as additional rent with the installment of rent next due or within 30 days of demand therefor, whichever occurs sooner. Tenant shall contract Directly with the electrical and gas supplier for these utililities. Tenant shall arrange and pay for all utilities and services required in the Leased Premises, including but not limited to, (a) electric, (b) heat, (c) gas, (d) water and (e) sewer services. Landlord shall not be responsible for interruption or impairment of service or utility. 9 23. Condemnation & Eminent Domain. If the land and premises leased herein, or of which the Leased Premises are a part, or any portion thereof, shall be taken under eminent domain or condemnation proceedings, or if suit or other action shall be instituted for the taking or condemnation thereof, or if in lieu of any formal condemnation proceedings or actions, the Landlord shall grant an option to purchase and or shall sell and convey the said premises or any portion thereof, to the governmental or other public authority, agency, body or public utility, seeking to take said land and Leased Premises or any portion thereof, then this lease, at the option of the Landlord, shall terminate, and the term hereof shall end as of such date as the Landlord shall fix by notice in writing; and the Tenant shall have no claim or right to claim or be entitled to any portion of any amount which may be awarded as damages or paid as the result of such conderru iatior, proceedings or paid as the purchase price for such option, sale or conveyance in lieu of formal condemnation proceedings; and all rights of the Tenant to damages, if any, are hereby assigned to the Landlord. The Tenant agrees to execute and deliver any instr unents, at the expense of the Landlord, as may be deemed necessary or required to expedite any condemnation proceedings or to effectuate a proper transfer of title to such governmental or other public authority, agency, body or public utility seeking to take or acquire the said lands and Leased Premises or any portion thereof. The Tenant covenants and agrees to vacate the said premises, remove all the Tenant s personal property therefrom and deliver up peaceable possession thereof to the Landlord or to such other party designated by the Landlord in the aforementioned notice. Failure by the Tenant to comply with any provisions in this clause shall subject the Tenant to such costs, expenses, damages and losses as the Landlord may incur by reason of the Tenant's breach hereof. 24. Abandonment of Premises. Tenant agrees not to abandon or vacate the Premises during the Term of this Lease. If Tenant does abandon or vacate the Premises for more than ninety (90) days, Landlord may terminate this Lease, by written notice to Tenant at any time prior to Tenant reoccupying the Premises, but such termination shall not entitle Landlord to pursue any other remedies unless an uncured Default then exists, in which case Landlord may pursue any and all remedies provided by this Lease, at law or in equity. 25. Default. If Tenant shalt default in the payment of Rent, Additional Rent, Percentage Rent or any Sum due; herein reserved when due and fails to cure such default within ten (10) days after written notice of such default is given to Tenant by Landlord; or if Tenant shall be in default in performing any of the terms or provisions of this Lease other than the provisions requiring the payment of Rent, and fails to cure such non-monetary default within thirty (30) days after written notice of such default is given to Tenant by Landlord, provided however that if such non-monetary default is of such a nature that it cannot through the exercise of diligent and reasonable efforts be cured within thirty (30) days, then Tenant shall not be in default in such instance if Tenant promptly commences and diligently pursues the cure of such non-monetary default to completion as soon as possible and in all events within ninety (90) days after such initial notice; or if Tenant is adjudicated a bankrupt; or if a permanent receiver is appointed for 'T'enant's property and such receiver is not removed within sixty (60) days after appointment thereof; or if, whether voluntarily or involuntarily, Tenant takes advantage of any debtor relief proceedings under any present or future laws, whereby the Rent or any part thereof, is, or is proposed to be, reduced or payment thereof deferred; or if Tenant's effects should be levied upon or attached and such levy or attachment is not satisfied or dissolved within thirty (30) days after such levy or attachment; or, if Tenant is an individual, in the event of the death of the individual and the failure of the executor, administrator or personal representative of the estate of the deceased individual to have assigned the Lease within three (3) months after such death to an assignee approved by Landlord; then, and in any of such events, Landlord, at its option, may exercise any or all of the remedies set forth in this Lease. 10 26. Remedies Upon Tenant's Default If there should occur any default on the part of the Tenant in the perfon-nance of any conditions and covenants herein contained, or if during the term hereof the Leased Premises or any part thereof shall be or become abandoned or deserted, vacated or vacant, or should the Tenant be evicted by summary proceedings or otherwise, the Landlord, in addition to any other remedies herein contained or as may be pemutted by law, may either by force or otherwise, without being liable for prosecution therefor, or for damages, re-enter the said premises and the same have and again possess and enjoy; and as agent for the Tenant or otherwise, re-let the Leased premises and receive the rents therefor and apply the same, first to the payment of such expenses, reasonable attorney fees and costs, as the Landlord may have been put to in re-entering and repossessing the same and in making such repairs and alterations as may be necessary; and second to the payment of the rents due hereunder. The Tenant shall remain liable for such rents as may be in arrears and also the rents as may accrue subsequent to the re-entry by the Landlord, to the extent of the difference between the rents reserved hereunder and the rents, if any, received by the Landlord during the remainder of the unexpired term hereof, after deducting the aforementioned expenses, fees and costs; the same to be paid as such deficiencies arise and are ascertained each month. 27. Termination on Default. Upon the occurrence of any of the contingencies set forth in the preceding clause, or should the Tenant be adjudicated as bankrupt, insolvent or placed in receivership, or should proceedings be instituted by or against the Tenant for bankruptcy, insolvency, receivership, agreement or composition or assignment for the benefit of creditors, or if this lease or the estate of the Tenant hereunder shall pass to another by virtue of any court proceedings, writ of execution, levy, sale, or by operation of law, the Landlord may, if the Landlord so elects, at any time thereafter, tenrunate this lease and the term hereof, upon giving to the Tenant or to any trustee, receiver, assignee or other person in charge of or acting as custodian of the assets or property of the Tenant, five days notice in writing, of the Landlord's intention so to do. Upon the giving of such notice, this lease and the term hereof shall end on the date fixed in such notice as if the said date was the date originally fixed in this lease for the expiration hereof; and the Landlord shall have the right to remove all persons, goods, fixtures and chattels therefrom, by force or otherwise, without liability for damages. 28. Removal of Tenant's Property. Any equipment, fixtures, goods or other property of the Tenant, not removed by the Tenant upon the termination of this lease, or upon any quitting, vacating or abandonment of the Leased Premises by the Tenant, or upon the Tenant's eviction, shall be considered as abandoned and the Landlord shall have the right, without any notice to the Tenant, to sell or otherwise dispose of the same, at the expense of the Tenant, and shall not be accountable to the Tenant for any part of the proceeds of such sale, if any. 29. Reimbursement of Landlord. If the Tenant shall fail or refuse to comply with and perform any conditions and covenants of the within lease, the Landlord may, if the Landlord so elects, carry out and perform such conditions and covenants, at the cost and expense of the Tenant, and the said cost and expense shall be payable on demand, or at the option of the Landlord shall be added to the installment of rent due immediately thereafter but in no case later than one month after such demand, whichever occurs sooner, and shall be due and payable as such. This remedy shall be in addition to such other remedies as the Landlord may have hereunder by reason of the breach by the Tenant of any of the covenants and conditions in this lease contained. 30. Non-Performance by Landlord. This lease and the obligation of the Tenant to pay the rent hereunder and to comply with the covenants and conditions hereof, shall not be affected, curtailed, impaired or excused because of the Landlord's inability to supply any service or material called for herein, by reason of any rule, order, regulation or preemption by any governmental entity, authority, department, agency or subdivision or for any delay which may arise by reason of negotiations for the adjustment of any fire or other casualty loss or because of strikes or other labor trouble or for any cause beyond the control of the Landlord. I1 31. Validity of Lease.The terms, conditions, covenants and provisions of this lease shall be deemed to be severable. If any clause or provision herein contained shall be adjudged to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it shall not affect the validity of any other clause or provision herein, but such other clauses or provision shall remain in full force and effect. 32. Non-Waiver by Landlord. The various rights, remedies, options and elections of the Landlord, expressed herein, are cumulative, and the failure of the Landlord to enforce strict performance by the Tenant of the conditions and covenants of this lease or to exercise any election or option or to resort or have recourse to any remedy herein confe«ed or the acceptance by the Landlord of any instaffinent of rent after any breach by the Tenant, in any one or more instances, shall not be construed or deemed to be a waiver or a relinquishment for the future by the Landlord of any such conditions and covenants, options, elections or remedies, but he same shall continue in full force and effect. 33. Notices. All notices required under the terms of this lease shall be given and shall be complete by mailing such notices by certified or registered mail, return receipt requested, to the address of the parties as shown at the head of this lease, or to such other address as may be designated in writing, which notice of change of address shall be given in the same manner. 34. Title and Quiet Enjoyment. The Landlord covenants and represents that the Landlord is the owner of the Leased Premises herein leased and has the right and authority to enter into, execute and deliver this lease; and does further covenant that the Tenant on paying the rent and perforn-ring the conditions and covenants herein contained, shall and may peaceably and quietly have, hold and enjoy the Leased Premises for the term aforementioned. Landlord shall not be responsible for the acts or omissions of any other tenant or third party that may interfere with Tenant's use and enjoyment of the Premises. 35. Force Majeure. In the event of a strike, lockout, labor trouble, civil commotion, an act of God, or any other event beyond Landlord's control (a "force majeure event") which results in the Landlord being unable to timely perform its obligations hereunder to repair the Premises, provide services, or complete Work (as provided in Exhibit "B"), so long as Landlord diligently proceeds to perform such obligations after the end of such force majeure event, Landlord shall not be in breach hereunder, this Lease shall not terminate, and Tenant's obligation to pay any Minimum Rent, additional rent, or any other charges and sums due and payable shall not be excused. 36. Entire Contract.Tlus lease contains the entire contract between the parties. No representative, agent or employee of the Landlord has been authorized to make any representations or promises with reference to the within letting or to vary, alter or modify the terms hereof. No additions, changes or modifications, renewals or extensions hereof, shall be binding unless reduced to writing and signed by the Landlord and the Tenant. 37. Conformity with Laws and Regulations. The Landlord may pursue the relief or remedy sought in any invalid clause, by conforming the said clause with the provisions of the statutes or the regulations of any governmental agency in such case made and provided as if the particular provisions of the applicable statutes or regulations were set forth herein at length. A Number and Gender. In all references herein to any parties, persons, entities or corporations the use of any particular gender or the plural or singular number is intended to include the appropriate gender or number as the text of the within nrsttmnent may require. All the temps, covenants and conditions herein contained shall be for and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs, executors, administrators, personal or legal representatives, successors and assigns. 12 39. Brokers. Tenant warrants that it has had no dealings with any real estate broker or agents other than The Pintzuk Brown Realty Group and Campbell Commercial Real Estate in connection with the negotiation of this Lease, and it knows of no real estate broker or agent who is entitled to a commission in connection with this Lease. Tenant shall indemnify and defend Landlord against any costs, claims and expenses, including reasonable attorneys' fees, arising out of Tenant's breach of any representa- tion or agreement contained in this paragraph. 40. Additional Rent. Tenant agrees to pay as further additional rent, as hereinafter provided, Tenant's Share of expenses incurred by Landlord at its discretion for the operation, management and maintenance of the Common Areas of the Shopping Center as constituted from time to time (hereinafter called the "Common Area Expenses"). As used herein, the term "Common Areas" shall mean those areas of the Shopping Center, including all parking areas, which are from time to time open for joint use by the tenants of Shopping Center or by the public, including driveways, truckways, delivery passages, walkways, concourses, malls, planted areas, landscaped areas, and public restrooms and common truck loading and receiving areas which are not leased to or reserved for individual tenants. Common Area Expenses shall include without limitation management fees paid to a management company, expenses reimbursable to a management company, costs incurred for lighting, heating, air conditioning, painting, cleaning, removal of trash, garbage, debris and other refuse, central trash disposal (if Landlord elects to provide same), traffic control, fire protection, sewer, or septic system, compliance with governmental and oth er regulatory a'athority applicable to the Shunning Center, policing, inspecting, landscaping and rr b repairing and replacing the Common Areas, or any part thereof, Landlord's share of costs incurred in the maintenance and repair of any offsite retention/detention facilities serving the Shopping Center and any offsite accessways burdened by an easement benefiting the Shopping Center, depreciation of maintenance equipment, costs of all insurance, including any hazard, public liability and property damage insurance, and business interruption or rent insurance, as Landlord shall reasonably deem appropriate with respect to the Shopping Center, including appraisals and consultants' fees and premiums in connection with such insurance and deductible amounts paid in connection with any insurance claim, costs of all water consumed in the Shopping Center which is not separately metered to tenants (single or multiple), and an administrative fee of fifteen percent (15%) of the foregoing costs, but excluding depreciation of Landlord's original investment in the Shopping Center. All capital expenditures included in operating costs (including, but not limited to, the replacement of the roof and resurfacing the parking areas) shall be treated as if said expenditures have been capitalized over their useful life, and Tenant's Share shall in no event include the cost of initial construction or expansion of the Shopping Center and the common areas. Tenant's Share to be paid by Tenant with respect to Common Area Expenses shall be that percentage of the cost of operation and maintenance of the Common Areas which the Rentable Area of the Premises bears to the Rentable Area of the Shopping Center, unless the Shopping Center or any facility serving the Shopping Center is operated, managed or maintained in common with other property or serves additional property, in which event Tenant's Share may be that percentage of a common cost which the Rentable Area of the Premises bears to the Rentable Area of the property under common operation, management, maintenance or served by the facility. Landlord may at its option make monthly or other periodic charges based upon the estimated annual cost of operation and maintenance of the Common Areas, payable in advance but subject to adjustment after the end of each calendar year on the basis of the actual costs for such year. Within ninety (90) days after the close of each calendar year, upon written request from Tenant, Landlord will furnish to Tenant a detailed statement of the expenses relating to the Common Areas for such year, such statement to be prepared in accordance with generally accepted accounting 13 practices and to include Tenant's proportionate share of the expenses relating to the Common Areas computed as herein provided. Tenant shall be liable for and shall pay all taxes levied against personal property, fixtures, and Tenant's Work in the Premises as additional rent; if such taxes for which Tenant is liable are levied against Landlord or Landlord's property and if Landlord elects to pay the same or if the assessed value of Landlord's property is increased by inclusion of any such items and Landlord elects to pay the taxes based on such increase, Tenant shall pay to Landlord upon demand, as additional rent, that part of such taxes for which Tenant is liable hereunder. Tenant further agrees to pay as additional rent, Tenant's Share of the general real estate taxes, tax consultant fees, assessments, and governmental charges levied against Shopping Center for each calendar year beginning with the Rent Commencement Date and during the Lease Term and any renewals or extensions thereof, together with Tenant's Share of the reasonable cost of any contest of such taxes, assessments and charges or the assessed valuation of the Shopping Center that Landlord may pursue in its reasonable discretion, including fees and disbursements of attorneys, tax consultants, arbitrators, appraisers, experts and other witnesses (hereinafter called the "Taxes"). The Taxes shall be appropriately prorated during the first and last years of the Lease Term if such years are less than full calendar years. "Tenant's Share" shall be that percentage which the Rentable Area of the Premises bears to the Rentable Area of the Shopping Center. Landlord may at its option make monthly or other periodic charges based upon the estimated annual taxes, payable in advance but subject to adjustment after receipt of the tax statement by Landlord. Tenant agrees to pay as additional rent any rent tax or other tax imposed upon rent payments or imposed upon Landlord based upon rent payments by Tenant to Landlord, however Tenant shall not be required to pay any income tax of Landlord. In the event that a merchants association is formed for the Shopping Center, Tenant agrees that it will join and maintain membership in such association. The objectives of such association shall be to advance the civic, social, commercial and economic welfare of its members and the general interest of the Shopping Center and its trade area. Tenant will pay such dues and assessments as may be fixed and determined from time to time by such association. Tenant shall also comply with such other by-laws, rules, and regulations as may be adopted from time to time by such association, and shall take such actions as may be necessary to remain in good standing in such association and shall cooperate in all of the activities of such association. Isl. Insurance. (a) Tenant shall keep in force throughout the Term: (a) a Commercial General Liability insurance policy or policies to protect Landlord against any liability to the public or to any invitee of Tenant incidental to the use of or resulting from any accident occurring in or upon the Leased Premises with a limit of not less than $1,000,000.00 per occurrence and not less than $2,000,000.00 in the annual aggregate, or such larger amount as Landlord may prudently require from time to time, covering bodily injury and property damage liability and $1,000,000.00 products/completed operations aggregate; (b) Business Auto Liability covering owned, non-owned and hired vehicles with a limit of not less than $1,000,000.00 per accident; (c) insurance protecting against liability under Worker's Compensation Laws with limits at least as required by statute; (d) Employers Liability with limits of $500,000.00 each accident, $500,000.00 disease policy limit, $500,000.00 disease - each employee; (e) All Risk or Special Form coverage protecting Tenant against loss of or damage to Tenant's alterations, additions, 14 improvements, carpeting, floor coverings, panelings, decorations, fixtures, inventory and other business personal property situated in or about the Leased Premises to the full replacement value of the property so insured; and, (f) Business Interruption Insurance with limit of liability representing loss of at least approximately six months of income. (b) Each of the aforesaid policies shall (i) be provided at Tenant's expense; (ii) name the Landlord and Landlord's mortgagee as additional insureds; (iii) be issued by an insurance company with a minimum Best's rating of "A+"; (iv) be with companies authorized to do business in the state where the property is located and (v) provide that said insurance shall not be cancelled unless thirty (30) days prior written notice (ten days for non-payment of premium) shall have been given to Landlord, and said policy or policies or certificates thereof, together with proof of payment, shall be delivered to Landlord by Tenant not less than fifteen (15) days prior to the commencement of the term hereof or the date when Tenant shall enter into possession, whichever is sooner and at least thirty (30) days prior to each renewal of said insurance. (c) So long as their respective insurers so permit, Tenant and Landlord hereby mutually waive their respective rights of recovery against each other for any loss insured by fire, extended coverage, All Risks or other insurance now or hereafter existing for the benefit of the respective party but only to the extent of the net insurance proceeds payable under such policies. Each party shall obtain any special endorsements required by their insurer to evidence compliance with the aforementioned waiver. Ind 'ficutao^.. Landlord shall not be liable and Tenant hereby :naives all claims against tilr. y+r ra'?i?i?ii Landlord for any damage to any property or any injury to any person in or about the Leased Premises or the Shopping Center by or from any cause whatsoever, except to the extent caused by or arising from the gross negligence or willful misconduct of Landlord or its agents, employees or contractors. Tenant shall protect, indemnify and hold the Landlord entities harmless from and against any and all loss, claims, liability or costs (including court costs and attorney's fees) incurred by reason of (a) any damage to any property or any injury to any person occurring in, on or about the Leased Premises or the Shopping Center to the extent that such injury or damage shall be caused by or arise from any actual or alleged act, neglect, fault, or omission by or of Tenant, its agents, servants, employees, invitees, or visitors to meet any standards imposed by any duty with respect to the injury or damage; (b) the conduct or management of any work or thing whatsoever done by the Tenant in or about the Leased Premises or from transactions of the Tenant concerning the Leased Premises; (c) Tenant's failure to comply with any and all governmental laws, ordinances and regulations applicable to the condition or use of the Leased Premises or its occupancy; (d) any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of the Tenant to be performed pursuant to this Lease, or (e) or for any cause or reason whatsoever arising out of or by reason of the occupancy or business of Tenant. The provisions of this Article shall survive the termination of this Lease with respect to any claim or liability accruing prior to such termination. 43. Construction and Acceptance of Premises. (a) Landlord agrees that Landlord will complete Landlord's Work as defined in Exhibit "B", with such minor variations as Landlord may deem advisable. Tenant acknowledges that neither Landlord nor any of Landlord's agents, employees, representatives, legal representatives or brokers has made any representations or warranties whatsoever as to the suitability of the Premises for the conduct of Tenant's business or for any other purpose, and that neither Landlord nor any of Landlord's agents, employees, representatives, legal representatives or brokers agreed to undertake or cause to be undertaken any alterations or to construct any improvements to the Premises 15 or the Shopping Center except as expressly provided in this Lease. Tenant shall have no right to enter or occupy the Premises until the Possession Turnover. Date identified on Exhibit B attached hereto. If Landlord shall for any reason fail to complete that part of Landlord's Work which is required in the Premises prior to Landlord's Work Scheduled Completion Date, Landlord shall not be deemed to be in default hereunder or otherwise liable in damages to Tenant nor shall the Term or any provision of this Lease be affected. (b) Tenant agrees to submit to Landlord on or before the Plan Delivery Date identified on Exhibit B attached hereto plans and specifications in such detail as Landlord may reasonably request covering Tenant's Work as specified in Exhibit " B", and any other work which Tenant proposes to do in the Premises. Such plans and specifications shall comply with all requirements set forth in Exhibit "B". Tenant shall not commence any work in the Premises until Landlord has approved the plans and specifications therefor in writing, which approval shall not be unreasonably withheld or delayed. (c) Upon the Date for Delivery of Possession, Tenant agrees to accept possession thereof and to proceed with due diligence to perform the work described in such plans and specifications which have been approved by Landlord, and to install its fixtures, furniture, and equipment in the Premises. Any work Tenant does in the Premises causing venting, opening, sealing, waterproofing or any altering of the roof shall be performed by Landlord's roofing contractor at Tenant's expense. By occupying the Premises, Tenant shall be deemed to have acknowledged that the Landlord has complied with all of its covenants and obligations with respect to the construction of the Premises, except for defects in Landlord's Work which are latent at the time the Premises are occupied, which shall in any event- he deemed waived by Tenant upon the expiration of one (1) year after the date the Premises are occupied by Tenant. In the event of any dispute concerning work performed or required to be performed in the Premises by Landlord or Tenant, the matter in dispute shall be submitted to Landlord's architect for determination and his certificate with respect thereto shall be binding on Landlord and Tenant. (d) Unless delayed in accordance with the provisions of Section 3(a) above, Tenant agrees to open the Premises to the public for business fully fixtured, stocked and staffed for the Permitted Use described in Article 15 of the Basic Lease Provisions no later than thirty (30) days after the Date for Delivery of Possession 44. Mechanic's Liens. If any mechanic's, construction or other liens shall be created or filed against the Leased Premises by reason of labor performed or materials furnished for Tenant in the erection, construction, completion, alteration, repair or addition to any building or improvement, Tenant shall upon demand, at Tenant's own cost and expense, cause such lien or liens to be satisfied and discharged of record together with any lien claims that may have been filed. Failure to do so shall entitle Landlord to resort to such remedies as are provided herein in the case of any default of this Lease, in addition to such as are permitted by law. 45. Remedies. In case of any default, re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a) all rent and additional rent shall be accelerated and shall become due thereupon and be paid up to the time of such re-entry, dispossess and/or expiration, (b) Landlord may re- let the Leased Premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms, which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent or charge a higher rental than that in this Lease; and/or (c) Tenant or the legal representatives of Tenant shall also pay 16 Landlord as liquidated damages for the failure of Tenant to observe and perform said Tenant's covenants herein contained, any deficiency between the rent hereby reserved and/or covenanted to be paid and the net amount, if any, of the rents collected on account of the subsequent lease or leases of the Leased Premises for each month of the period which would otherwise have constituted the balance of the term of this Lease. The failure of Landlord to re-let the Leased Premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such expenses as Landlord may incur in connection with re-letting, such as legal expenses, reasonable attorneys' fees, brokerage, advertising and for keeping the Leased Premises in good order or for preparing the same for re-letting. Any such liquidated damages shall be paid in monthly installments by Tenant on the rent day specified in this Lease. Landlord, in putting the Leased Premises in good order or preparing the same for re-rental may, at Landlord's option, make such alterations, repairs, replacements, and/or decorations in the Leased Premises as Landlord, in Landlord's sole judgment, considers advisable and necessary for the purpose of re-letting the Leased Premises, and the making of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release Tenant from liability. Landlord shall in no event be liable in any way whatsoever for failure to re- let the Leased Premises, or in the event that the Leased Premises are re-let, for failure to collect the rent thereof under such re-letting, and in no event shall Tenant be entitled to receive any excess, if any, of such net rent collected over the sums payable by Tenant to Landlord hereunder. 46. Delay in Giving Possession. This Section applies if Landlord cannot give possession of the Leased Premises on the beginning date because of the retention of possession by any occupant thereof or for any other reason except as herein provided. Landlord shall then have 30 days in which to give possession. If possession, is given within that time, Tenant shall accept possession and pay rent and additional rent from that date. The ending date of the term, and the Lease Year, shall not change. If possession is not given within that time, this Lease may be cancelled by either party on notice to the other. 47. Attorney Fees. In the event that Landlord must retain an attorney to collect rent, enforce any provision of this Lease, defend any action brought by or on behalf of Tenant, or regain possession of the Leased Premises, Tenant shall be liable to Landlord for all reasonable costs and attorney fees associated therewith. In case Landlord shall, without fault on its part, be made a party to any litigation commenced by or against Tenant, then Tenant shall pay all costs, expenses and reasonable attorneys' fees incurred or paid by Landlord in connection with such litigation. In the event of any action, suit or proceeding brought by Landlord to enforce any of the covenants and agreements in this Lease, the Landlord shall be entitled to recover from the Tenant of any costs, expenses and reasonable attorneys' fees incurred in connection with such action, suit or proceeding. 48. Waiver. Landlord's failure to enforce any provision in this Lease shall not prevent Landlord from enforcing any provision at a later time. 49. Rules and Regulations.Tenant shall comply with, and cause its employees, agents and invitees to comply with, all reasonable rules and regulations adopted by Landlord in connection with the use of the Leased Premises and the common areas of the property. 50. Hours of Operation/Tenant Retail Operating Covenants. (a) Tenant shall not, nor shall Tenant at any time permit any occupant of the Premises to: (i) conduct or permit any fire, bankruptcy or auction. sale (whether real or fictitious) unless directed by order of a court of bankruptcy or of competent 17 jurisdiction, or conduct or permit any fictitious "Going Out of Business" sale; (ii) use, or permit to be used, the malls or sidewalks adjacent to such Premises, or any other area outside the Premises for the sale or display of any merchandise or for any other business, occupation or undertaking, or for outdoor public meetings, circus or other entertainment (except for promotional activities in cooperation with the management of the Shopping Center or an association of merchants within the Shopping Center); (iii) use or permit to be used, any sound broadcasting or amplifying device which can be heard outside of the Premises; (iv) use or permit to be used any portion of the Premises for any unlawful purpose or use or permit the use of any portion of the Premises as regular living quarters, sleeping apartments or lodging rooms or for the conduct of any manufacturing business; (v) use the Premises for or conduct therein activities, the purpose for which is not included within the purpose for which the Premises may be used according to Article 15 of the Basic Provisions of this Lease; or (vi) use, operate or maintain the Premises in such manner that any of the rates for any insurance carried by Landlord, or the occupant of any premises within the Shopping Center, shall thereby be increased, unless Tenant shall pay to Landlord or such occupant within the Shopping Center, as the case may be, an amount equal to any such increase in rates, such payment to be made promptly on demand as each premium which shall include such increase shall become due and payable. (b) Tenant: (1) will not represent or advertise that it regularly or customarily sells merchandise at "manufacturers", "distributor's", or "wholesale", "warehouse", "fire sale", "bankruptcy sale", or similar prices or other than at retail prices; (ii) will keep all mechanical apparatus free of vibration or noise which may be transmitted beyond the confines of the Premises; (iii) will not cause or permit odors to emanate from the Premises; (iNV) %k ill not load or unload or permit the loading or unloading of merchandise, supplies or other property except within the area designated by Landlord from time to time; and (v) will not permit the parking or standing, outside of such designated area, of trucks, trailers or other vehicles or equipment engaged in such loading or unloading. (c) Tenant: (i) will keep clean the inside and outside of all glass in the doors and windows of the Premises; (ii) will replace promptly at its own expense with glass of like kind and quality any plate or window glass; (iii) will replace doors or door hardware of the Premises which may for any reason become cracked or broken; (iv) will maintain the Premises in a clean, orderly and sanitary condition and free of insects, rodents, vermin, and other pests; (v) will not permit undue accumulation of garbage, trash, rubbish or other refuse in the Premises; and (vi) will keep such refuse in proper containers inside the Premises until such time as same is called for to be removed. Tenant will maintain plate glass insurance reasonably satisfactory to Landlord if any plate glass is contained in the store front of the Premises. (d) Tenant shall keep the Premises open for business with the public during all hours when the Shopping Center generally is open for business with the public. Unless the hours during which Shopping Center shall be open for business with the public shall have been otherwise determined by a merchant's association, if in operation, or Landlord if not, Tenant shall keep the Premises open for business during it's self determined hours of operation. 18 Notwithstanding the provisions of this Section, no Tenant shall be required to keep its Premises open for business at any time prohibited by applicable law, ordinance or governmental regulations, and Tenant shall be permitted to close the Premises during reasonable periods for repairing, cleaning or decorating the Premises, with written permission from Landlord. (e) In the event that at any time during the Term, or any extension or renewal thereof, Tenant should vacate, abandon, or desert the Premises or cease operating the store therein fully fixtured, stocked and staffed for the Permitted Use, then, in any such event, Tenant shall be in default hereunder and Landlord shall have, in addition to all rights and remedies provided under this Lease regarding default, the right to collect not only the Minimum Rent and other rent otherwise provided for herein, but also additional rental at the rate of twice the per diem amount of Minimum Rent otherwise payable hereunder for each and every day that Tenant shall fail to do business within the Premises in accordance with the terms of this Lease; provided, however, that such additional rental shall not accrue during any period when the Premises are rendered untenantable by reason of fire, casualty, or cause beyond Tenant's control and not resulting from the intentional or negligent acts or omissions of Tenant, its assignees, sublessees, servants, agents, employees, invitees, licensees, or concessionaires, or the servants, agents, employees, invitees, licensees, or concessionaires of Tenant's assignees or sublessees, and the failure to operate Tenant's store during such period shall not be deemed a default hereunder. Said additional rent is intended to contribute to the expense of monitoring the occupancy of the Premises and shall not be deemed a penalty or liquidated damages. 51. Nondisclosure of Lease Terms. Tenant acknowledges and agrees to maintain the confidentiality of the essential business terms of this Lease, and in particular, the financial terms. In no event will Tenant disclose such terms to other tenants or prospective tenants of the center. 52. Waiver of Jury Trial. Landlord and Tenant hereby mutually waive trial by jury in any proceeding concerning this Lease or arising therefrom. 53. Full Execution.This Lease shall not be binding on either party until it is executed by all parties and delivered to all parties. 54. Parking. Intentionally Left Blank 55. Tenant Estoppel Certificate. Tenant agrees to at any time and from time to time, within ten (10) days after Landlord's written request, execute, acknowledge and deliver to Landlord a written instrument certifying the Commencement Date, that Tenant has accepted possession of the Leased Premises and is open for business, that this Lease is unmodified and in full force and effect (or if there have been modifications, that it is in full force and effect as modified and stating. the modifications), the dates to which Base Rent, Additional Rent and other charges have been paid in advance, if any, and stating whether or not to the best knowledge of the signer of such certificate, Landlord is in default in the performance of any covenant, agreement or condition contained in this Lease and, if so, specifying in 19 detail each such default of which the signer may or should have knowledge; and certifying such other matters as may be reasonably requested by Landlord. 56. Right to Relocate. As a material inducement for Landlord to enter into this Lease with Tenant, Landlord shall, throughout the Term of this Lease and any renewals thereof, have the right at Landlord's expense to relocate Tenant to other premises (the "New Premises") within the property. In the event Landlord elects to exercise the right of relocation, Landlord shall deliver written notice ("Landlord's Notice") to Tenant identifying the location of the New Premises and the date on which the Tenant shall be moved to the New Premises, which date shall not be less than 30 days from Tenant's receipt of Landlord's Notice. The square footage and frontage of the New Premises shall not be more than fifteen percent (15%) larger nor fifteen percent (15%) smaller than the Leased Premises. In the event that the New Premises do not consist of the identical number of square feet as the Leased Premises, the parties shall execute an instrument specifying the new number of square feet in the New Premises, and the new number of square feet shall be deemed effective as of the date on which the New Premises is delivered to Tenant. All rent shall be adjusted accordingly. 57. Cleaning Premises. Upon vacating the Premises, Tenant agrees to return the Premises to Landlord broom clean and in the same condition when Tenant's possession commenced, natural wear and tear excepted, regardless of whether any Security Deposit has been forfeited. 58. Removal of Fixtures. If Tenant is not in default hereunder, Tenant may, prior to the expiration of the Ten„ of this Lease, or any extension thereof, remove any fixtures and equipment which Tenant has placed in the Premises which can be removed without significant damage to the Premises, provided Tenant promptly repairs all damages to the Premises caused by such removal. 59. Holding Over. If Tenant shall be in possession of the Leased Premises after the termination date of the Lease, and in the absence of any agreement extending the Term hereof or Landlord's demand to Tenant to sooner vacate the Leased Premises, the tenancy under this Lease shall become one from month to month terminable by either party on thirty (30) days prior written notice, at a monthly rental equal to one and one-half times the sum of (i) the monthly installment of Base Rent payable during the last month of the Term and (ii) the monthly installment of Additional Rent payable during the last month of the Term. Tenant shall also pay all other charges payable under the terms of the Lease, prorated for the period during which Tenant remains in possession. Such tenancy shall also be subject to all other conditions, provisions, and obligations of this Lease. Tenant shall not interpose any counterclaim or counterclaims in a summary proceeding or other action based on holdover. The provisions of this Section shall be in addition to any liability Tenant may have to Landlord in respect of its holdover. 60. Demolition. As a material inducement for Landlord to enter into this Lease with Tenant and to afford Landlord the opportunity to redevelop the Shopping Center in order to maximize its economic potential throughout the Term of this Lease, should Landlord decide to demolish no less than fifty (50) percent of the total gross square footage of all buildings in the Shopping Center, exclusive of space occupied by Anchor Tenants (which term for the purposes if this Paragraph shall mean any tenant(s) in the Shopping Center leasing 15,000 or greater gross square feet), Landlord shall have the absolute right to terminate this Lease upon the giving of six (6) months prior written notice ("Demolition Notice") to Tenant. Should Landlord give the Demolition Notice, the Term of this Lease shall expire and terminate on the date set forth in said Notice as if said date were the expiration date of the Term of this Lease originally provided for in this Lease. 20 61. Liability of Landlord If Landlord is found to have failed to perform any covenant, term or condition of this Lease, and if Tenant shall recover a money judgment against Landlord for such failure, the judgment shall be satisfied only out of the proceeds of sale received upon execution of the judgment and levy against the right, title and interest of Landlord in the Shopping Center as the same may then be encumbered, and neither Landlord nor any of its partners shall be liable for any deficiency. It is understood that in no event shall Tenant have the right to levy execution against any property of Landlord other than its interest in the Shopping Center. The right of execution shall be subordinate and subject to any mortgage or other encumbrance upon the Shopping Center. No trustee, shareholder, officer, member, director, employee, parent or subsidiary company, Landlord affiliate or partner of Landlord shall in any event or at any time be personally liable for the payment of performance of any obligation required or permitted of Landlord under this Lease or under any document executed in connection herewith. No attachment, execution, writ or other process shall be sought or obtained, and no judicial proceeding shall be initiated by or on behalf of Tenant, against Landlord personally or Landlord's assets (other than Landlords interest in the Shopping Center) as a result of any such failure, breach or default under this Lease, and neither they, nor Landlord nor any Landlord affiliate, shall be liable for any deficiency. 62. Hazardous Materials/Indemnification. (a) Tenant shall not cause or permit the receipt, storage, use, location or handling in the Shopping Center (including the Premises) of any product, material or merchandise which is explosive, highly inflammable, or a "hazardous or toxic material," as that term is hereafter defined. "Hazardous or toxic material" shall include all materials or substances which have been determined to be hazardous to health or the environment and are regulated or subject to all applicable laws, rules and regulations from time to time, including, without limitation hazardous waste (as defined in the Resource Conservation and Recovery Act); hazardous substances (as defined in the Comprehensive Emergency Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act); gasoline or any other petroleum product or by-product or other hydrocarbon derivative; toxic substances, (as defined by the Toxic Substances Control Act); insecticides, fungicides or rodenticide, (as defined in the Federal Insecticide, Fungicide, and Rodenticide Act); asbestos and radon and substances determined to be hazardous under the Occupational Safety and Health Act or regulations promulgated thereunder. Notwithstanding the foregoing, Tenant shall not be in breach of this provision as a result of the presence in the Premises of minor amounts of hazardous or toxic materials which are in compliance with all applicable laws, ordinances and regulations and are customarily present in a general retail use (e.g., computer chemicals, and janitorial supplies). (b) Without limiting in any way Tenant's obligations under any other provision of this Lease, Tenant and its successors and assigns shall indemnify, protect, defend (with counsel approved by Landlord) and hold Landlord, its partners, officers, directors, shareholders, employees, agents, lenders, contractors and each of their respective successors and assigns (the Indemnified Parties") harmless from any and all claims, damages, liabilities, losses, costs and expenses of any nature whatsoever, known or unknown, contingent or otherwise (including, without Iirritation, attorneys' fees, litigation, arbitration and administrative proceedings costs, expert and consultant fees and laboratory costs, as well as damages arising out of the diminution in the value of the Premises or any portion thereof, damages for the loss of the Premises, damages arising from any adverse impact on the marketing of space in the Premises and sums paid in settlement of claims), which arise during or after the Term in whole or in part as a result of the presence or suspected presence of any hazardous or toxic materials, in, on, under, from or about the Premises due to Tenant's acts or omissions, on or about the Premises, unless such claims, damages, liabilities, losses, costs and expenses arise out of or are caused by the negligence or willful misconduct of 21 any of the indemnified Parties. Landlord and its successors and assigns shall indemnify and hold Tenant and its successors and assigns harmless against all such claims or damages if arising out of or caused by the negligence or willful misconduct of Landlord, its agents or employees. The indemnities contained herein shall survive the expiration or earlier termination of this Lease. 63. Authority. If Tenant executes this Lease as a corporation, limited partnership, limited liability company or any other type of entity, each of the persons executing this Lease on behalf of Tenant does hereby personally represent and warrant that Tenant is a duly organized and validly existing corporation, limited partnership, limited liability company or other type of entity, that Tenant is qualified to do business in the state where the Building is located, that Tenant has full right, power and authority to enter into this Lease, and that each person signing on behalf of Tenant is authorized to do so. In the event any such representation and warranty is false, all persons who execute this Lease shall be individually, jointly and severally, liable as Tenant. Upon Landlord's request, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord confirming the foregoing representations and warranties. 64. Miscellaneous. No agreement to accept a surrender of the Leased Premises shall be valid unless in writing signed by Landlord. The delivery of keys to any employee of Landlord or of Landlord's agents f this Lease or a surrender of the Lea Serl Prem;,zt- The failure of shall not operate as u i.°iIi',lnutivn va Landlord to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of this Lease, or of any rule or regulation, shall not prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach. No provision of this Lease shall be deemed to have been waived by Landlord, unless such waiver be in writing and signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than the rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check nor any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment: without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy provided in this Lease. This Lease contains the entire agreement between the parties, and any agreement hereafter made shall be ineffective to change, modify or discharge it in whole or in part, unless such agreement is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. 65. Governing Law The laws of the State in which the Leased Premises is located shall govem the interpretation, validity, performance and enforcement of this Lease. If any provision of this Lease should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Lease shall not be affected hereby. 66. Sale. In the event the original Landlord hereunder, or any successor owner of the Shopping Center, shall sell or convey the Shopping Center, all liabilities and obligations on the part of the original Landlord, or such successor owner, under this Lease accruing thereafter shall terminate, and thereupon all such liabilities and obligations shall be binding upon the new owner. Tenant agrees to attorn to such new owner. 22 67. Limitation of Liability. Landlord's obligations and liability with respect to this Lease shall be limited solely to Landlord's interest in the Shopping Center, as such interest is constituted from time to time, and neither Landlord nor any partner of Landlord, or any officer, director, shareholder, or partner or member of any partner or member of Landlord, shall have any individual or personal liability whatsoever with respect to this Lease. 68. CONFESSION OF JUDGMENT (A) ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD IS HEREBY IRREVOCABLY AUTHORIZED AND EMPOWERED TO APPEAR FOR TENANT IN ANY ACTION TO CONFESS JUDGMENT AGAINST TENANT, AND MAY SIGN FOR TENANT AN AGREEMENT, FOR WHICH THIS LEASE SHALL BE HIS SUFFICIENT WARRANT, FOR ENTERING IN ANY COMPETENT COURT AN ACTION OR ACTIONS IN EJECTMENT, AND IN ANY SUITS OR IN SAID ACTIONS TO CONFESS JUDGMENT AGAINST TENANT AS WELL AS ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE PREMISES. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ANY ONE OR MORE EXERCISES THEREOF, BUT JUDGMENT MAY BE CONFESSED FROM TIME TO TIME AS OFTEN AS ANY EVENT SET FORTH IN THIS LEASE SHALL HAVE OCCURRED OR BE CONTINUING. SUCH POWERS MAY BE EXERCISED DURING AS WELL AS AFTER THE EXPIRATION OR TERMINATION OF THE ORIGINAL TERM AND DURING AND AT ANY TIME AFTER ANY EXTENSION OR RENEWAL OF THE TERM, AND/OR (B) IF TENANT SHALL DEFAULT IN THE PAYMENT OF RENT RESERVED OR PAYABLE HEREUNDER OR IN THE PAYMENT OF ANY OTHER SUMS DUE HEREUNDER BY TENANT, TENANT HEREBY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR TENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR SAID RENT AND SAID OTHER SUMS; AND TO SIGN FOR TENANT AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION OR ACTIONS FOR THE RECOVERY OF SAID RENT AND OTHER SUMS, AND IN SAID SUI'T'S OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST TENANT FOR ALL OR ANY PART OF SAID RENT AND SAID OTHER SUMS, INCLUDING, BUT NOT LIMITED TO, THE AMOUNTS DUE FROM TENANT TO LANDLORD UNDER EACH OF THE SUBSECTIONS OF THIS SECTION AND FOR INTEREST AND COSTS, TOGETHER WITH A REASONABLE ATTORNEY'S COMMISSION FOR COLLECTION OF NOT LESS THAN FIVE THOUSAND DOLLARS ($5,000). SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF SAID RENT AND OTHER SUMS SHALL FALL DUE OR BE IN ARREARS AND SUCH POWERS MAY BE EXERCISED AS WELL, AFTER THE EXPIRATION OF THE TERM OF THIS LEASE, THIS LEASE PROVIDES FOR THE CONFESSION OF JUDGMENT AGAINST TENANT FOR MONEY AND FOR EJECTMENT. IN CONNECTION THEREWITH, TENANT. KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND UPON ADVICE OF SEPARATE COUNSEL, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TG PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF 23 PENNSYLVANIA. WITHOUT LIMITATION OF THE FOREGOING, TENANT HEREBY SPECIFICALLY WAIVES ALL RIGHTS TENANT HAS OR MAY HAVE TO NOTICE AND OPPORTUNITY FOR A HEARING PRIOR TO EXECUTION UPON ANY JUDGMENT CONFESSED AGAINST TENANT BY LANDLORD HEREUNDER. TENANT (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF LANDLORD HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LANDLORD WILL NOT SEEK TO EXERCISE OR ENFORCE ITS RIGHTS TO CONFESS JUDGMENT HEREUNDER, AND (I.) ACKNOWLEDGES THAT THE EXECUTION OF THIS LEASE BY LANDLORD HAS BEEN MATERIALLY INDUCED BY, AMONG OTHER THINGS, THE INCLUSION IN THIS LEASE OF SAID RIGHTS TO CONFESS JUDGMENT AGAINST TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS SAID PROVISIONS WITH TENANT'S INDEPENDENT LEGAL COUNSEL AND THAT THE MEANING AND EFFECT OF SUCH PROVISIONS HAVE BEEN FULLY EXPLAINED TO TENANT BY SUCH COUNSEL, AND AS EVIDENCE OF SUCH FACT AN AUTHORIZED OFFICER OF TENANT SIGNS HIS OR HER INITIALS IN THE SPACE PROVIDED BELOW, g -- v (In>tiais) e Q ?( pryaxwt'c (rarnce ..>2ge?/ aaac i e?e?a uc Pne; RprrWrxig_ TntPntinnaily j .eft Blank 70. Percentage Rent. Intentionally Left Blank IN WITNESS WHEREOF, the parties hereto are executing this Lease on the date first written above. By signing below, all parties agree to be bound by all terms and conditions set forth in the lease form to which this Addendum is attached. Landlord: Witnessed or Attested By: PR REAL ESTATE, LLC & HOME ELITE, L TES -TENAN-f S`IN--1C0Iv1UQ By: 42 Name: .- Title: Tenants: FOXY FITNESS, LLC A CONTOURS EXPRESS FRANCHISEE By: 24 Nan7e: EXHIBIT "A" PROPERTY [ATTACH SHOPPING CENTER SITE PLAN] 25 EXHIBIT "A- I " PREMISES [ATTACH PLAN SHOWING PREMISES BY DIAGONAL LINES] Error! Unknown document property name. EXHIBIT "B" INTENTIONALLY LEFT BLANK Error! Unknown document property name. WORK LETTER AGREEMENT B-1 SCHEDULEI Landlord's Work Space to be demised between Suites 18 & 19 and wall shall be paint ready. Also, removal of the middle wall/partition. B-2 Error! Untmown document property'name. SCHEDULE II Plan Delivery Date: N/A Contractor Selection Date: N/A Possession Turnover Date: N/A Tenant Improvement Allowance: NONE B-3 Error! Unknown document property name. EXHIBIT "C" COMMENCEMENT DATE/ACCEPTANCE LETTER INTENTIONALLY LEFT BLANK C-1 Error! Unknown document property name. PINTZUK BROWN REALTY GROUP VIA US MAIL Tammy Sisto & Rebecca Fox Foxy Fitness, LLC 1916 County Line Road York Springs, PA 17372 RE: Memorandum of Lease Term - Delivery of Possession - East Gate Plaza Tammy and Rebecca: This letter shall serve to memorialize the date which Delivery of Possession for your Leased Premises occurred. Pursuant to your Lease dated June 30, 2005 the date for Delivery of Possession occurred on August 19, 2005. Although the Lease Agreement called for. Rent Commencement to occur Sixty (60) Days following Delivery of Possession, the Landlord has agreed to extend the Rent Commencement Date to November 1, 2005. Please acknowledge your acceptance of this letter and return an original signed copy to me at the letterhead address. This letter shall become Exhibit C of your Lease, Please attach it as such. Thank You, R. Christopher Datz, Director of Asset Management Services Acknowledged Foxy Fitness, LLC Tammy Sisto -&C - 46' ebecca Fox 491 Old York Road, Suite 200 • Jenkintown, PA 19046 Office: 215-881-8980 `• Fax: 215-883-8483 • Web: www_pbrginc.com EXHIBIT "D" USE RESTRICTIONS Notwithstanding any other provision of this Lease, and without in *any way expanding the use of the Premises permitted hereunder, Tenant acknowledges and agrees that its use of the Premises is subject to and will not violate the restrictions and exclusives set forth hereinbelcw: TENANT SHALL HAVE THE EXCLUSIVE RIGHT TO OPERATE A WOMEN'S FITNESS CENTER. D-1 Error! Unknown document property name. EXHIBIT "E" RULES AND REGULATIONS Rules and Revelations 1. No radio or television or other similar devices shall be installed without first obtaining in each instance Landlord's consent in writing. No aerial shall be erected on the roof or exterior walls of the Leased Premises, or on the grounds, without in each instance, the written consent of Landlord. Any aerial so installed without such written consent shall be subject to removal without notice at any time at Tenant's expense. 2. No loud speakers, televisions, phonographs, radios or other devices shall be used in a manner so as to be heard or seen outside of the Leased Premises without the prior written consent of Landlord. 3. If the Leased Premises are equipped with heating facilities separate from those in the remainder of the Shopping Center, Tenant shall keep the Leased Premises at a temperature sufficiently high to prevent freezing of water in pipes and fixtures. 4. The outside areas immediately adjoining the Leased Premises shall be kept clean and free from snow, ice dirt and rubbish by Tenant to the satisfaction of the Landlord, and Tenant shall not place or permit any obstructions or merchandise in such areas. 5 The plumbing facilities shall not be used for any other purpose than that for which they are constructed, and no foreign substance of any kind shall be thrown therein, and the expense of any breakage, stoppage, or damage resulting from a violation of this provision shall be borne by Tenant. 6. Tenant shall not burn any trash or garbage of any kind in or about the Leased Premises, the Shopping Center, or within one mile of the outside property lines of the Shopping Center. 7. All deliveries or shipments of any kind to and from the Leased Premises, including loading of goods, shall be made only by way of the rear of the Leased Premises or at any other location designated by Landlord, and only at such reasonable time designated for such purpose by Landlord. 8. Tenant shall not use the public or common areas in the Shopping Center for business purposes or special events unless prior approval in writing has been granted by the Landlord. 9. Tenant shall use, at Tenant's cost, a pest extermination contractor at such intervals as Landlord may require, but no less often than once annually. 10. Tenant shall not place, or permit, displays, decoration or shopping carts on the sidewalk in front of the Leased Premises or upon any of the common areas of the Shopping Center. 11. Tenant shall not cause or permit any unusual or objectionable odors to be produced upon or within, or released from, the Leased Premises. F-1 Error'. Unknown document property name. EXHIBIT T" UTILITIES A) Tenant shall be responsible for their share of water usage and sewer billed on a quarterly or monthly basis and shall contract directly for such service. B) Tenant shall contract directly with the local provider of gas and electric service to the leased premises. F-2 Error! Unknown document property name. EXHIBIT "G" INTENTIONALLY LEFT BLANK SIGN CRITERIA G-1 Error! Unknown document property name. EXHIBIT "H" FORM OF GUARANTY TAMMY SISTO AND REBECCA FOX SHALL PERSONALLY GUARANTEE THE FINANCIAL OBLIGATIONS OF THIS LEASE FOR A PERIOD OF TWO YEARS FROM THE RENT COMMENCEMENT DATE. H-1 Error? Unknown document property name. EXHIBIT "I" STATE/LOCAL LAW PROVISIONS ITENTIONALLY LEFT BLANK I-1 Error! Unknown document property name. EXHIBIT "J" SPECIAL STIPULATIONS INTENTIONALLY LEFT BLANK I-2 Error? Unknown document property name. CERTIFICATE OF SERVICE AND NOW, this 27th day of May, 2008, I Mark K. Emery certify, that I have served the foregoing petition to Strike-Off ' Esquire do hereby and/or open Judgment by Confession by mailing a true and correct copy via United States first class mail, addressed as follows: Frank G. Murphy, Esquire Frey, Petrakis, Deeb, Blum & Murphy, P C 1601 Market Street, Suite 2600 Philadelphia, PA 19103 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery I MAY E 8 ??,M`? FILM ELITE LIMITED and P.R. REAL ESTATE, LLC, Plaintiffs vs. FOXY FITNESS, LLC, T\A CONTOURS EXPRESS, TAMMY SISTO and REBECCA FOX, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-841 CIVIL ACTION - LAW AND NOW, this ?° ? `' day ofd, 2008, upon consideration of Defendant Rebecca Fox's Petition to Strike-Off and/or Open Judgment, it is hereby ordered that: 1. a rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; 2. the respondent shall file an answer to the petition within -Z-?_ days of this date; 3. the petition shall be decided under Pa. R.C.P. No. 206.7; 4. depositions shall be completed within j!j days of this date; 5. argument shall be held on _a in Courtroom of the Cumberland County Court ouse; ett /: jo f M . 6. notice of entry of this order shall be provided to all parties by the petitioner; er , , end. U w o stribution: 5 ark K. Emery, Esquire ?Frank G. Murphy, Esquire 1?cp O£.S mat LL BY THE COURT VINVA-RS N3d ? 0 :8 WV I I Nnr 800Z AWiGj%l`H 1Gbd 3M d0 9',)44 &{ fj r HOME ELITE LIMITED and P.R. REAL ESTATE, LLC, Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO and REBECCA FOX, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-841 CIVIL TERM IN RE: DEFENDANT REBECCA FOX'S PETITION TO STRIKE OFF AND/OR OPEN JUDGMENT ORDER OF COURT AND NOW, this 27th day of June, 2008, upon consideration of the attached letter from Christine C. McGuigan, Esq., attorney for Plaintiffs, the oral argument previously scheduled for July 15, 2008, is cancelled. BY THE COURT, " Christine C. McGuigan, Esq. Deeb, Petrakis, Blum & Murphy, F.C. 1601 Market Street Suite 2600 Philadelphia, PA 19103 Attorney for Plaintiffs 'Mark K. Emery, Esq. 410 North Second Street Harrisburg, PA 17101 Attorney for Defendant :rc C 1 'Cr P-n .21 LerL (v?3o?G3 `TM .f. J. esley Oler, r., J. s1z :9 w of nr sou A '? 31-l i. ?O v 06/26/08 14:55 FAX ..a ATTORNEYS AT LAW June 26, 2008 ReplyTo- PHILADELPHIA V1A FAX: (717) 240-6462 1601 Market Srreer The Honorable Wesley Oler, Jr. Suite 2600 Cumberland County Court of Common Pleas 1 Courthouse Square Philadelphia, PA 19103 Carlisle, PA 17013 (215) 563-0500 Fax: (215) 563-5532 32 RE: Home Elite LTD, et al. v. Foxy Fitness, LLC, et al. Cumberland County, CCP 10 Melrose Avenue Dear Judge Oler: X1002 5uicc 430 This office represents the Plaintiffs in the above-referenced Cherry Hill, N) 08003 matter, which is pending before Your Honor. I am pleased to inform (856) 216-2322 Your honor that the parties have this day settled the litigation in its entirety. Fax: (856) 216-2392 Should Your Honor have any questions regarding this matter, please do not hesitate to contact me. www,dpatrorneys.com Respectfully, C STINE CGUIGAN CCM / ras cc: Mark Emery, Esquire (717) 238-9884 Deeb, Pecrakis Blum & Murphy, P.C. HOME ELITE LIMITED and P.R. REAL ESTATE, LLC, Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO and REBECCA FOX, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-841 CIVIL TERM IN RE: DEFENDANT TAMMY SISTO'S PETITION TO STRIKE OFF OR OPEN JUDGMENT ORDER OF COURT AND NOW, this 9"' day of July, 2008, upon relation of Mark K. Emery, Esq., Attorney for Defendant, that this case has settled in its entirely, the argument previously scheduled for September 3, 2008, is cancelled. BY THE COURT, Wesley Olbr, Jr., 9. Christine C. McGuigan, Esq. Deeb, Petrakis, Blum & Murphy, P.C. 1601 Market Street Suite 2600 Philadelphia, PA 19103 Attorney for Plaintiffs Mark K. Emery, Esq. 410 North Second Street Harrisburg, PA 17101 Attorney for Defendant :rc 8 0.6 WV 0 1 I0r BGOZ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW FOXY FITNESS, LLC, t/a Docket No. 08-841 CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372. Defendants PRAECXPE TO MARK JUDGMENT SATISFIED TO THE PROTHONOTARY: Kindly mark judgment satisfied as to Foxy Fitness, LLC; Tammy Sisto; and Rebecca Fox. DEEB, PETRAKIS, BLUM, & MURPHY, P.C., By: Christine C. McGuig , Esquire DATED: Attorney for Plaintiff, Home Elite Ltd. and P.R. Real Estate, LLC ?? DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd., Inc. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. 08-841 CERTIFICATE OF SERVICE I, Christine C. McGuigan, Esquire, hereby certify that, on August 7, 2008, I caused a copy of the within Praecipe to Mark Judgment Satisfied to be served, via first class mail, postage pre-paid, upon the following parties: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Attorney for Petitioner jm?x CHRISTINE C. MCGUIGAN, ESQUIRE E'3 P-J, C'7. CXD f _ -ern r-- o..a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 . Plaintiffs V. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW FOXY FITNESS, LLC, t/a Docket No. 08-841 CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX : 1916 County Line Road York Springs, PA 17372 Defendants OF TO THE PROTHONOTARY: Kindly mark the above-captioned matter as voluntarily dismissed with DEEB, PETRAKIS, BLUM, & MURPHY, P.C., By: Christine C. McGuigan, Esquire DATED: Attorney for Plaintiff, Home Elite Ltd. and P.R. Real Estate, LLC prejudice. ^^_y .0 - .. 46, DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christina M. Hughes, Esquire Identification Nos. 65886; 91635 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 HOME ELITE LTD. and P.R. REAL ESTATE, LLC 491 Old York Road, Suite 200 Jenkintown, PA 19046 Plaintiffs V. FOXY FITNESS, LLC, t/a CONTOURS EXPRESS, TAMMY SISTO, and REBECCA FOX 1916 County Line Road York Springs, PA 17372 Defendants Attorneys for Plaintiffs, Home Elite Ltd., Inc. and P.R. Real Estate, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. 08-841 CERTIFICATE OF SERVICE I, Christine C. McGuigan, Esquire, hereby certify that, on August 7, 2008, I caused a copy of the within Praecipe for Voluntary Dismissal of Complaint for Confession of Judgment to be served, via first class mail, postage pre-paid, upon the following parties: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 Attorney for Petitioner (Z&j? CHRISTINE C. MCGUIGAN, ESQUIRE A-s - v C 0 f7i R ? M?7, {- 'i7 fry -?= tV ~G