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HomeMy WebLinkAbout01-6338ROTHMAN, SCHUBERT & REED, a Pennsylvania General Partnership, Plaintiff CHONG SO t/d/b/a SUPERIOR CLEANERS, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : No.: C_)}- 6,33 : : : ESECTMENT BY CONFESSION CONFESSION OF JUDGMENT UNDER RULE 2974 Pursuant to the authority contained in the warrant of attorney, a copy of which is attached to. thc Complaint filed in this action, I appear for the Defendant and con£ess judgment in eJeCtS, ent in favor of the Plaintiff and against the Defendant for possession of the real property described as follows. 322 East Penn Drive, Enola, Cumberland Pennsylvania 17025. County, Date: November 6, 2001 Respectfully s)~bmitte~, Thorn(~ O'7. Willi~ Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-4642 Telephone: (717) 763-1383 Attorneys for Plaintiff LOLL ¥~ 'l"lll-I ~l~¥9 MYq .L¥ SA~N~OJ.J.¥ ROTHMAN, SCHUBERT & REED, a Pennsylvania General Partnership, Plaintiff CHONG SO t/d~b/a SUPERIOR CLEANERS, Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA EJECTMENT BY CONFESSION COMPLAINT FOR CONFESSED JUDGMENT IN EJECTMENT 1. Plaintiff, Rothman, Schubert & Reed is a Pennsylvania general partnership with a mailing address 308 East Penn Drive, Enola, Pennsylvania 17025. 2. Defendant, Chong So t/d/b/a Superior Cleaners is an adult individual residing at 4414 Royal Oak Road, Camp Hill, Cumberland County, Pennsylvania 17011-4414. 3. Judgment by confession is not being entered against a natural person in connection with a residential lease, a retail installment sales contract or account, or a consumer credit transaction. 4. On or about December 4, 1998, Plaintiff entered into a Lease Agreement With Defendant for the property located at 322 East Penn Drive, in the Pennsboro Commons Shopping Center located in Enola, Cumberland County, Pennsylvania. 5. The Lease Agreement contained a confession of judgment in ejectment provision for Defendants' default for failure to pay rent or other monetary obligations when due. A tree and correct copy of the Lease Agreement is attached hereto as Exhibit "A". 6. The property that is the subject of the Lease Agreement, and for which judgment for possession is confessed, is known and numbered as 322 East Penn Drive, Enola, Cumberland County, Pennsylvania 17025. 7. The instrument in question has not been assigned since its execution on or about December 4, 1998. 8. Plaintiff has not confessed judgment in ejectment against Defendant in any jurisdiction permitted to adjudicate the same. 9. Pursuant to the Lease Agreement, confession of judgment was to be entered upon default for failure to pay rent or other monetary obligations when due and owing under the terms of the lease. 10. Pursuant to the Lease Agreement, Plaintiff provided written notice of default dated September 18, 2001, a copy of which is attached hereto and as Exhibit "B". 11. Defendant is in default of the Lease Agreement as it has failed to pay full amount of rent or other monetary obligations due and owing to Plaintiff and, therefore all conditions precedent have been satisfied prior to the entry of a confessed judgment. 12. Plaintiff is authorized to confess judgment in ejectment against Defendant from possession of premises by warrant of attorney contained in Section 18.01 of the Lease Agreement. 2 WHEREFORE, Plaintiff, Rothman, Schubert & Reed respectfully demands judgment in ejectment against Defendant, Chong So t/d/b/a Superior Cleaners for immediate possession of the above-described premises, as authorized by the warrant of attorney and for such other further relief as this Court deems proper. Date: November 6, 2001 Respectfully submitted, Thorn's ~. Wil~ams, Esquire Attorney I.D. No. 67987 2331 Market S~'eet Camp Hill, PA 17011-4642 Telephone: (717) 763-1383 Attorneys for Plaintiff 3 EXHIBIT "A" LEASE AGR. EEMENT PENNSBOiiO COMMONS SHOPPING CENTER TABLE OF CONTENT ~'ITI,E SECTION A. BASIC LEASE PROVISIONS AND ENUMERATION OF EXHIBITS ............. Section A-l. Basic Lease Provisions Section A-2. Et'feet o£Reference to a Basic Lease Provision Section A-3. Enumeration o£Exhibits ARTICLE I - GILANT AND TERM ..................................................... 3 Section 1.01. Leased Premises and Common Areas .................................. 3 Section 1.02. Term Section 1.03. Obligations Prior to Commencement of Term ........................... 4 Section 1.04. Owner's Financing Contingency ...................................... 4 ARTICLE II - RENT Section 2.01. Section 2.02. Section 2.03. Section 2.04. Section 2.05. Annual Minimum Rent ............................................. 4 Percentage Rent ·. ~ ............................................... 5 Gross Receipts Defined ............................................ 5 Additional Rent Interest A, RTICLE I11 - RECORDS; P, EI'OI¥1'S AND AUDIT . ..................................... 5 ~x,,,.. Section 3.01. Tenant's Records; Reports and Audit .................................. 5 ARTICLE IV - CONSTRUCTION, ALTERATIONS, ADDITIONS AND RELOCATIONS OF IMPROVEMENTS ........................................... 6 Section 4.01. Owner's and Tenant's Work Section 4.02. Changes and Additions to the Shopping Center .......................... 6 ARTICLE V - CONDUCT OF BUSINESS BY TENANT ................................... 7 Section 5.01. Use of Premises Section 5.02. Operation of Business .............................................. 7 Section 5.03. Radius Restriction ................................................. 7 Section 5.04. Parking ...................................................... ... 7 ARTICLE VI - TAXES Section 6.01. Taxes ........................................................... 8 ARTICLE VII - COST OF MAINTENANCE AND CONTROL OF COMMON FACILITIES ...... 9 Section 7.01. Common Facilities Contribution ..................................... 9 Section 7.02. Operating Cost and Common Facilities Defined ......................... 9 Section 7.03. Payment ....................................................... 10 Section 7.04. Control by Owner ................................................ 10 ARTICLE VIII - ALTERATIONS; SIGNS; SURI~NDER AND TENANT LIENS .............. l I Section 8.01. Alterations ...................................................... 11 Section 8.02. Surrender; Title to Improvements; Removal and Restoration by Tenant ..... 11 Section 8.03. Tenant's Liens Section 8.04. Tenant's Sig~,~s ................................................... 12 ARTICLE IX - MAINTENANCE OF LEASED PREMISES; RULES AND REGULATIONS ..... 12 Section 9.01. Maintenance by Tenant ............................................ 12 Section 9.02. Maintenance by Owner ............................................ 13 Section 9.03. Rules and Regulations ............................................ 13 ARTICLE X - INSURANCE AND INDEMNITY ........................................ 13 Section 10.01. Liability Insurance .............................................. 13 Section Section Section Section Section Section 10.02. Fire Insurance .................................................. 13 10.03. Insurance on Buildings and Improvements in the Shopping Center ........ 14 10.04. Business Liability Insurance ....................................... 14 10.05. Indemnification ................................................. 14 10.06. Waiver of Subrogation; Limitation of Liability ........................ 15 10.07. Notice by Tenant ................................................ 15 AR. TICLE XI - UTILITIES .......................................................... 15 Section 11.01. Utility Charges ................................................. 15 Section 11.02. Owner's Liability for Interruption .................................. 15 ARTICLE XII - ESTOPPEL CERTIFICATE; ATTORNMENT; PRIORiTY OF LEASE; RIGItTS OF MORTGAGEE .................................... 16 Section 12.01. Estoppel Certificate ............................................. 16 Section 12.02. Attornment .................................................... 16 Section 12.03. Priority of Lease ................................................ 16 Section 12.04. Rights o£Owner's Mortgagee ...................................... 16 AI¥1'ICLE XIII - ASSIGNMENT, SUBLETI'ING AND CORI~OIL~.TE OWNERSHIP ........... 17 Section 13.01. Consent Required ................................................ 17 Section 13.02. Corporate Ownership ............................................ 17 Section 13.03. Owner's Right to Assign .......................................... 17 ARTICLE XIV - WASTE; HAZARDOUS WASTE; GOVERNMENTAL AND INSURANCE REGULATIONS ............................... 18 Section 14.01. Waste or Nuisance ............................................... 18 Section 14.02. Hazardous Waste ................................................ 18 Section 14.03. Governmental and Insurance Regulations ............................ 19 ARTICLE XV - MERCHANTS ASSOCIATION ......................................... 19 Section 15.01. Merchants' Association ........................................... 19 Section 15.02. Promotion Fund ................................................ 19 Section 15.03. Advertising .................................................... 20 ARTICLE XVI - DESTRUCTION ..................................................... 21 Section 16.01. Destruction of Leased Premises .................................... 21 Section 16.02. Destruction of Shopping Center .................................... 2l AR. TICLE XVII - EMINENT DOMAIN ................................................ 21 Section 17.01. Condemnation of Leased Premises .................................. 21 ARTICLE XVIII ~ TENANT'S DEFAULT; AND SECURITY DEPOSIT ...................... 22 Section 18.01. Default by Tenant ............................................... 22 Section 18.02. Bankruptcy .................................................... 24 Section 18.03. Owner's Right to Cure Defaults .................................... 25 Section 18.04. Security Deposit ................................................ 26 ARTICLE XIX - ACCESS BY OWNER ................................................ 26 Section 19.01. Right of Entry .................................................. 26 ARTICLE XX - ARBITRATION; RIGHT TO APPEAL ................................... 27 Section 20.01 - Arbitration .................................................... 27 Section 20.02 - Waiver of Trial By Jury .......................................... 27 ARTICLE XXI - OWNER'S LIABILITY ............................................... 28 Section 21.01. Limitations on Liability .......................................... 28 Section 2l .02. Owner's Obligations With Respect to Future Building Areas ............. 28 ARTICLE XXII - HOLDING OVER ................................................... 29 Section 22.01. Holding Over .................................................. 29 Section 22.02. Time is ofthe Essence ........................................... 29 ARTICLE XXIII - WAIVER; NOTICE; DEFINITIONS; MISCELLANEOUS .................. 29 Section 23.01. Waiver ........................................................ 29 Section 23.02. Force Majeure .................................................. 29 Section 23.03. Notices and Payments ............................................ 29 Section 23.04. Definitions .................................................... 30 Section 23.05. Miscellaneous .................................................. 30 iii I,EASE I,E I ,TEI~, J~cnnsbul'O Co111111OliS ,qhol)l:,in~ (_Ten[ur Rolhnlan, Schubert & Reed P.O. Box 188 355 Norfl~ 21st Street Camp Il)Il, PA 17011-0188 RE: Lease dated ~ ~ , 1998 between William F. Rothmao, Charles F. Schubert & Samuel L. Reed, Co-Partners, t/d/b/a Roflmmn, Schubert & Reed, a l'ennsylvania General l~artnership, Owoer, and Chong So Superior Cleaners Tenant, covering Premises ]coaled in Pelmsboro Commons Shopping Cenler, Easl Pemlsbor~ Township, Cumberhmd Courtly, Pmmsylvania. 'File undersigned, as Teo:mt, hereby confirms (he £ollow/ng: Tenant Ires accepted possession of the Premises demised lmrsuant lo tile terms of the above-described Lease. The improvements and space required to bc furnished according Icl tile aforesakl l.ease have been completed ami supplietl in nil respects. 3. Landlord-Owner has fififilled all of its duties of an iaducement nalure. 4. The aforesaid Lease bas not been modified, altered or amemled except as set forth below. There arc ii() offsets or credits duc against rcnlals mn' have rcnlals been prclmid except as provided by the [.ease terms. The initial lerm nfsaid Lease began on the day of colnmellced lo accrLle Oil that daJe; tile JllJ{iaJ Lense Werlll e,xj)Jl'es on , 19 , and rcnlals 7. Tenant has no notice of any prior assignmeot, hypolhecation or pledge of rents or of Ihe Lease. 'fE'NANT '~- l y: Title: LEASE AG REI,.'M I£NT £oliows:WlTNESSETII, that in consideration of nmtual covenants, Owner and Tenant hereby agree as SECTION A. RA~IC [.EASE PROVISIONS AND ENUMERATION OF FXHIR['[~i Section A-]. Ra~ic kease Prnvisim~ DATE: SHOPPING CENTER: OWNER: TENANT: Pennsboro Commons Shopping Center Cumberland County, Pennsylvania William F. Rolhman, Charles F. Schubert & Samuel L. Reed, Co-Partners, t/d/b/a P, othman, Schubert & Reed, a Pennsylvnnia General Partnership Chong So TENANT'S ADDRESS: 4414 Royal Oak Road Camp Hill, PA 17011-4414 TENANT'S PIIONE NUMBER:TIT-975-5598 - -.g, AO=.l.0.zo - 432-7135 TENANT'S TILe. DE NAME: Superior Cleaners LEASED PREMISES: The Premises outlined in red on Exhibit A containing approximately 1200 S.F. sqtmre feet orG,.oss Leasable Area and identified as Block B Section 3 next to Subways LEASED TERM: Five (5) Years. RENEWAL TER/vI: year options PERIOD FOR COMPLETION OF TENANT'S WORK: PERIvII'TFED USES: Tenant's work shall be completed on or betbre 60 days after Owner substantially completes Owner's Work set forth in Exhibit 13 and makes the Leased Premises available to Tenant. The term "substantially completes" as used in this paragraph shall mean that Owner has completed Owner's Work with the exception of minor items which can be folly completed prior to cmnpIction of Tenant's Work withoot material inter£erence with Tenant's Work or upon receipt of a certificate of occupancy fi'om East Pennsboro Township, whichever occurs sooner. ANNUAL MINIMUM RENT: PERCENTAGE RATE: 13REAKPOINT: INITIAL ESTIMATED COMMON FACILITIES CONTRIBUTION FOR TENANT: INITIAL ESTIMATED TAX CHARGE FOR Tenant shall pay to Owner, as Ammal Minimum Rent, Eighteen Thousand Dollars($ 18.000.00 ) per anntan ($ 1,500.00 per month), beginning on tile Commencement Date (as defined in Section 1.02 hereof). The Annual Minimmn Rent for the renewal terms shall be the greater of(a) increased by five percent (5%) or (b) the rate at the end ofthe preceding tm'm adjusted for the Consumer Price Index. Collsumcr Price Index (hereinafter the "CPI") shall mean the average for "all items, shox~ on the CPI for the urhan wage earners and clerical workers for Ihe Philadelphia region as published by the Bureau of Labor and Statistics of Ibc United States Department of Labor using the years 1990-1996 as the reference base of hundred (100), or if the CPI is no Ioager published, the iadex of consumer prices in the Uniled Slates most elosely compm'nble to said index, slier making such adjustmenls ns amy be prescribed by the agency publishiug the same or ns otherwise may be required to compensate for changes suhsequenl to the commencement dale hereof, in itcnls included, or meflmd of conlpulation error. The average CPI for the qoarter proceeding the execution oFthis Lease shall be the base CPI in this paragraph in order to determine the percentage rate of increase in CPI. N/^ % $ N/^ $ 1,620.00 per calendar year ($ 135.00 adjustment as set lbrth in Article VII of this Lease) per montl'O (subject to TENANT: INITIAL ESTIIvlATED INSURANCE CIIARGE FOR TENANT: SECURITY DEPOSIT: $ 1,200.00 per lax year ($ 100.00 set £orth in Article VI of this Lease) per month) (subject to adjustment as $ 300.00 per calendar year ($. 25.00 adjustment as set lbrtb in Article X of this Lease) per month) (subject to Upon execution of this [.ease, Tenant shall deposit the sum of $ 1,500.00 will] Owner to secure the performance of the obligations of Tenant herein contained. Section A-2. Effect of Reference fo a Basic I.ense Provisiml. Each reference in this Lease to any of'tire Basic Lease Provisions contained in Section A-1 shall be deemed to incorporate all of tile terms provkled uuder each such Basic l.ease Provision. Section A-3. Fnumernlion of Tire Exhibits enumerated in this Section and attached to this Lease are hereby incorporated in this [.ease by reference anti each party agrees lo perform all obligations binding upon it under such Exhibits. Exhibit A F. xhibit A- I Exhibit B Exhibit C Exhibit D Site Plan Legal Description of Owner's Tract Construction Exhibit Rules and Regulations Guaranty of Lease RECITALS Owner awns fee title to cerlain real property described nn Exhibit A- I. 'File real property described on Exhibit A-I (as tire same may be expanded or reduced as contemplated in this Lease) is herein called "Owner's Tract." Tile term "Shopping Center" shall mean Owner's Tract, together with the buildings and other improvements thereon from time to time. ARTICI,E I - GRANT AND TERM Section 1.0l. [.eased Premises and Common Areas. Owner leases to Tenant and Tenant rents fi'om Owner those premises located in tile Shopping Center and described as the "I.eased Premises" in Section A-I of the Basic Lease Provisions, together with the appurtenances specifically herein granted. The use by Tenant o£the Leased Premises shall include the non- exclusive use of the "Common Facilities" (as defined in Section 7.02) shown on Exhibit A, and such other Common Facilities as may be designated lyon] time to time by Owner, subject, however, to the provisions &Section 4.02 and 7.04 and to the other terms and conditions o£this Lease. 3 Section 1.02. Term The term of this Lease and Tenant's obligation to pay rent shall, subject to the provisions of Section 23.02, commence upon tile earlier of the following dates (the "Commencement Date"): (i) the date on which Tenant shall open the Leased Pren'dses for business with the public, or (ii) the date of expiration of the "Period For Completion of Tenant's W ' ' ' ork des gnated n Section A-I of the Basic Lease Provisions. The term of this Lease shall expire, unless sooner tern'dnated as in this Lease provided, on the last day of the last "Leased Year" (as defined in Section 23.04) provided under "Lease Term" in Section A-1 of the Basic Lease Provisions. In order to extend the Leased Term as provided under "Renewal Term" in Section A-I of the Basic Lease Provisions, Tenant shall give Owner sixty (60) days written notice of its intention to renew the Leased Term prior to the end of the then current term at the amount designated for the renewal terms provided under Annual Minimum Rent in Section A-1 of the Basic Lease Provision. Section 1.03. Obligationg Prior to Commencement of Term. Tenant shall perform all of its obligations under this Lease (except its obligations to pay rent and other charges) from the date npon wbich the Leased Premises are first made available to Tenant until the Commencement Date. Section I 04. Owner's Financing Contingency. It is a condition of all of Owner's obligations under this Lease that within twelve (12) months from tile date of execution of this Lease, which period may be extended by Owner for not more than an additional six (6) months, Owner obtain commitments for construction money and permanent mortgage loan financing for that portion of the Shopping Center, inclnding Tenant's Leased Premises, as designated on the Site Plan as the initial phase of construction, in an amount and on terms satisfactory to Owner. If at the end of said twelve (12) month period, or any extension as aforesaid, Owner has ~ot obtained such commitments, Owner or Tenant may each cancel this Lease by giving written notice to the other. Tenant shall receive a return of any deposit in the event of such cancellation. In the event tiffs Lease is canceled under the provisious of this section, neither party shall have any further obligation or liability to the other under or with respect to this Lease. ARTICLE I1. RENT Section 2.01. Annual Minin'mrn Rent. Tenant shall pay to Owner, without any prior demand, deduction or setoff, the "Annual Minimum Rent" speci fled in Section A-1 of the Basic Lease Provisions, in equal monthly installments on or before the first day of eacb calendar month in advance. Annual Minimum Rent for a fractional calendar month shall nta~'e Rent/ . -~o the Annual Minimum Rent, Tenant shall pay to Owner, as percentage rent he~gr.r..m~ (the" sum equivalent to the "Percentage Rate" ~on A-I of the Basic ~ each Lease Year during the te~ er e me . ual Percentage Rent for each Lease ~~h Lease Year ~rm. For any Lease Year in which there has been an abatement of Annual Minimum ' t~tt~e Breakpoint for such Lease Year shall be prorated, and shall be equal °~~int for such Lease Year by a fraction, the n~hich is the ~~e yd d' t~w m h Ang e nualMinimumRentDavableb~Tenant~ (9 ' _ le term by_the Percentage Rater Sectmn 2.03.( Gro~ Receints De The term "Gross Receipts" is defined to mean: (i) the entire amount of the price charged, whe_he, he. he. he. he.h~ w ,h~,or partially in cash or on credit, or otherwise, for all goods, wares, merchandise and chef any kin..d,_s__o.I _~en.s, ed or delivered, and all charges for services sold or pertormed~jnc~, upon or from any part of or thfou~e of the Leased Premises or any part thereof by T~mllTand any other person, firm or co. rp.o~a!ion, orby me~y mechanical or other vendi~z_t..~e~prh .o~n_e_s_af,,d- th~milar~vi.ces operated~rily for tile convenience of Tenant's emP~n from any operation~ in--om Gross i~,e'ceipts by other pmv~ ~~lude the amo~h-t any ~overnmental authority dir~~"'"d-ic~id to the taxing, author I sto'ck tax, an'~fi~i:i~i~-~me similar 1~ celpts. Section 2.04. Add tonal Rent, Tenant shall pay, upon demand as additional rent, all charges required to be paid by Tenant under this Lease, whether or not the same are designated "additional rent". Sectmn _(,05. In I~-enan~sha'll fails to pay within five (5) da s from when the same is due'~,~nd a able, an rent or i PY~.. Y any additional rent, Tenant shall, upon d~charge;'o'T$100.00 for each installment of Annual Minimum Rent or other charge past due and (ii) interest at thd "Interest Rate" (as defined in Section 23.04) on the arrearages from the due date thereof until paid. ARTICI.F. III - RECORDS; REPORTS AND AIJDIT Section 3.01. Tenant's Records: Renorts~ and Audit.. ~/f, jO )?'P-'".,t J'/4 C Tenant agrees to prepare and keep true and complete' records and accounts for at least 24 months after each Lease Year during the term of this Lease of all Gross Receipts for each such Lease Year in accordance with generally accepted accounting principles consistently followed. Tenant shall submit to O~vner on or before the 45th day following the end of each Lease Year during the term, a statement certified by Tenant showing the amount of Gross Receipts during such Lease Year and itemizing all deductions and exclusions therefrom. Owner may at any time within 24 months after the end of any Lease Year during the term, upon 10 days' prior notice to Tenant, cause an audit to be made by Owner's accountants of Tenant's books and records relating to its Gross Receipts for such Lease Year. If such audit shall disclose that Tenant has understated Gross Receipts b{k3~/o_oor more for soch Lease Year, Tenant shall, upon demand, pay to Owner the cost of such audit in addi~T6W[o any deficiency in Annual Percentage Rent, which deficiency shall be payable in any event. If such audit shall disclose that Tenant has understated Gross Receipts b~y 8~ or more lbr such Lease Year, Owner shall, in addition to its other rights hereunder, have the right to te~'fffh~ate this Lease by giving notice thereof to Tenant. If Owner so elects to terminate this Lease, this Lease shall terminate 10 days after the date of such notice. Tenant shall cooperate fully with Owner in connection with such audit, including, without limitation, furnishing Owner with an explanation of the methodology employed by Tenant in connection with any computerization of Tenant's records. If Owner's accountants, after examining such records and accounts as Tenant makes available to them, are unable to verify the Gross Receipts for such Lease Year by reason of Tenant's failure to prepare, keep or make available the same in the manner required under this Section 3.01, then Tenant shall, upon demand, and without impairing Owner's other remedies, pay the cost of such audit. At Owner's request, Tenant shall provide an annual financial statement. ARTICI.E IV - CONSTRIJC'FION. A1.TERATIONS: ABDI'FIONS AND REI.OCATIONS OF IMPROVEMI~NT$ Section 4.01. Owner's and Tenant's Work. (A) Owner and Tenant shall construct the Leased Premises in accordance with the provisions of Exhibits B. All of Tenant's Work with respect to utility installations sfiall also be sobject to approval, when applicable, by the utility company furnishing the service. (B) Owner or an authorized utility company shall have the right to construct, maintain, repair, replace and relocate utility lines, pipes, conduits and duct work where necessary or desirable, through attic space, column space or other similar areas of the Leased Premises, and to repair, alter, replace or remove the same, all in a manner which does not interfere unnecessarily with Tenant's use thereof, and Tenant shall not be entitled to an abatement or reduction of rent or to claim an actual or constructive eviction by reason thereofi "Owner's Work" (hereinafter defined in Exhibit B) shall be deemed approved by Tenant in all respects except for items of Owner's Work which are not completed or do not conform to Exhibit B and as to which Tenant shall have given notice to Owner within 30 days after the commencement of the term. Section 4.02. Changes and Addltion~ to the Shopping Center. Notwithstanding anything set forth in this Lease to the contrary, it is agreed that Owner reserves the right, without invalidating this Lease or modifying any provision thereof except Exhibit A, at any time either before, during or after the initial construction thereof, (i) to make alterations, changes, deletions and additions (including additional stories) to the buildings, Common Facilities and other improvements in the Shopping Center (excluding the interior of the Leased Premises); (ii) to add and permit to be added additional land(s) to the Shopping Center and to exclude land(s) therefrom; (iii) to construct and to permit to be constructed additional buildings and other improvements in the Shopping Center; (iv) to remove or relocate the whole or any part of any building or other improvement in the Shopping Center; and (v) to relocate the premises leased to any other tenant. PROVIDED, HOWEVER, the foregoing shall not be construed as permitting Owner to change the location of the Leased Premises. ARTICLE V - CONDUCT OF BI/SINERS BY TENANT Section 5,01. I~'Jse c~fPrernises, Tenant shall operate the Leased Premises tinder the "Trade Name", if any, specified in Section A-1 of the Basic Lease Provisions and shall use the Leased Premises solely for the "Permitted Uses" specified therein and for no other use or purpose whatsoever. Tenant shall not permit any business to be operated in or from tile Leased Premises by any concessionaire or licensee without the prior consent of Owner. Tenant shall, subject to the provisions of Section ~2.02, (i) open tile Leased Premises by the date provided in Section 1.02 and thereafter continnously operate all of the Leased Premises in good :faith during the term so as to produce the maximum profitable and practical Gross Receipts which may be produced by such manner of operation; and (ii) keep the Leased Premises op~rl.,~r ~b~,,~ess and the signs t ~erefore ghted each day from 10:00 a.m. until_9..O~ g.m., Monday through-~o~a time then current). If Tenant .defaults in respect to hny of the foregoing covenants then Te~ll, in recognition of the difficulty or ~mpossibility of determining Ovmer's damages, pay to Oxvner, upon demand, as liquidated damages ( and not as a penalty) and in addition to the Annual Minimum Rent and other charges payable under this Lease, a separate charge equal to 1/365 of the then applicable Annual Minimum Rent for each day, or part thereof, Tenant fails to open or operate the Leased Premises in accordance ~vith the provisions of this Section. 5.03. Radius Restriction. If Tenant or "Guarantor" (if any) or (if Tenant is not an individual or partnership) any subsidiary or parent corporation of Tenant or Guarantor, or any affiliate of Tenant or Guamntor shall directly or indirectly engage or participate in, as owner, principal, employee or agent, or through any subsidiary, or affiliate, or furnish financial or other aid or support to, any business enterprise or undertaking which is in any manner or degree competitive with the uses specified in Section 5.01 of the Lease Agreement, and such business is located within 3 miles from any boundary line of the Shopping Center, then Owner shall have the right, in recognition of the fact that the Annual Percentage Rent payable hereunder may be reduced by such competition, to require by notice to Tenant that 331/~% of any and all gross sales (which shall be coextensive in scope to Gross Receipts as defined in this Lease) made at, in or from any such competing operation shall be deemed Gross Receipts for tile purpose of computing the Annual Percentage Rent due under this Lease, with the same force and effect as though such pementage of gross sales had actually been made in the Leased Premises and in such event tile provisions of.article III shall be applicable to such competing operation and the gross sales received therein. Section 5.04. Parking. Tenant and employees of Tenant shall park their automobiles in the side and rear parking areas designated by Owner for employees. Owner shall provide appropriate lighting for said area. Owner shall be entitled to tow improperly parked vehicles at the automobile owner's expense and without notice. ARTICI',E VI - TAXF. S Secllon 6.01 Taxes, (A) The term "Taxea" shall mean the aggregate of the real estate taxes, assessments and other governmental charges and levies, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind or nature whatsoever (including assessments for public improvements or benefits and interest on unpaid installments thereo0 which may be levied, assessed or imposed or become liens upon the Shopping Center, or which arise out of the use, occupancy or possession of the Shopping Center (land, buildings and permanent improvements) from time to time. The term "Taxes" shall not, however, include inheritance, estate, succession, transfer, gift, franchise, corporation, income or profit tax imposed upon Owner, nor peualties imposed upon Owner for Owner's delinquent payment ofthe Taxes; PROVIDED, HOWEVER, that i fat any time during the term of this Lease the methods of taxation prevailing at the commencement of the term of this Lease shall be altered so that in addition to or in lieu of or as a substitute for the whole or any part of the Taxes now levied, assessed or imposed on real estate as such there shall be levied, assessed or imposed (i) a tax on the rents received from the Shopping Center; or (ii) a license fee measured by the rents receivable by Owner from the Shopping Center; or (iii) a tax or license fee imposed upon Owner which is otherwise measured by or based in whole or in part upon tile Shopping Center or any portion thereof, then such tax or fee shall be included in the computation of Taxes, computed as if the amount of such tax or fee so payable were that part due if the Shopping Center were the only property of Owner subject thereto. (B) The term "Tax Year" shall mean the 12 month period established as the real estate tax year by the taxing authorities having jurisdiction over the Shopping Center. [m.,!C)' Theterm"Tenant'sTaxcharge"shallmeananamounteqaaltotheproductobainedby~ ultlp,y,ng the sam of the Taxes for each Tax Year plus all costs, expenses and attorneys' fees in,c, urred_b.,y_ /~[ Owner in contesting any Taxes during such Tax Year (which Owner may do at its ootion) b Tenant s [[ k Percentage Share" (hereinafter defined in Section 23.04) as of the date the 'Faxes for'such'TaYx Year ~! ) I[~ ' assessed. For the Tax Year in which this Lease commences or terminates, Tenants Tax Charge shall be ~ prorated, t~ (O) q .... enants I ax Charge shall be paid o Owner in montldy installments (as estimated by Owner) in advance on the first day of each calendar month during such Tax Year. Owner's estimate of Tenant's Tax Charge for the Tax Year in which this Lease commences is set forth in Section A-I of the Basic Lease Provisions. Within 90 days after the end ofeach Tax Year, Owner shall deliver a copy to Tenant ofall tax bills for such Tax Year and certify to Tenant the amount of Tenant's Tax Charge and Ovvner and Tenant shall then adjust any overpayment or underpaymeut by Tenant of Tenant's Tax Charge for such Tax Year. Any payment required in connection with an overpayment or underpayment shall be due within thirty (30) days. Owner's failure to provide such information within the 90 days shall in no way excuse the Tenant from its obligations to pay any underpayment or constitute a waiver of Owner's right to bill and collect such underpayment from Tenant in accordance with this paragraph. (E) Tenant shall pay (or reimburse Owner upon demand if the same are levied against Owner or the Shopping Center), before delinquency, any and all taxes, assessments, license fees and public charges, of whatever kind or nature, levied or assessed during tile term by any governmental authority against Tenant's business in the Leased Premises and the fixtures, furniture, appliances and any other personal property therein. ('-<) s (F) Owner shall have the sole, absolute and unrestricted right (but not the obligation) to contest and/or compromise the validity or amou, nt of any Tax by appropriate proceediogs. Owner shall bare the rigbt (but not the obligation), if permitted by law, to make installment payments of any assessments levied against the Shopping Center, and in such eveot, Tenant's share of the Taxes shall be computed upon the installments thereon paid by Owner iu each Tax Year. ARTICI.E VII - COST OF MAINTENANCE AND CONTROL OF CO/VIMON FACII.ITIEs Section 7.01. Common Facilities Contribution. In each calendar year during the term, Tenant shall pay to Owner an amount (the "Common Facilities Contribution") equal to a proportion of the "Operating Cost" (as defined in Section 7.02) of the Common Facilities ("Tenant's Common Facilities Contribution"). Tenant's Common Facilities Contribution for each calendar year during the tem'~ shall be that portion of the Operating Cost for such calendar year equal to the product obtained by multiplying the Operating Cost for such calendar year by Tenant's Percentage Share (hereinafter defined in Section 23.04) as of the first day of such calendar year. Section 7.02. Operating Cost and Comn'mn Facilities Defined, (A) The term "Oneratint, Cost" shall mean the total cost (other than the cost properly chargeable to capital account, except as herein ~pecifically provided) and expense incurred in operating, maintaining, equipping, inspecting, protecting and repairing the Common Facilities, including without limitation, the cost or expense of, or incurred io connectiou with or reasonably attributable to: water, gas, electricity and other utilities; gardening aod landscaping (including planting and replacing flowers and shrubs); cleaning; fire protection (including installation and maintenance of an ADT or similar type system); fees for required licenses; personal property taxes; all Taxes levied, assessed or imposed or which may become a lien on the Common Facilities or which may arise out of the use thereof; line painting; the repair and maintenance of the roof and finished ceiling (including lighting) of all Shopping Center canopies; operating of loudspeakers and other equipment supplying music; sanitary control; security services (if any); sewer service charges; removal of ice, snow, trash, rubbish, debris, garbage and other refuse (inclnding ice and snow removal immediately in l¥ont of Tenant's storefront); depreciation on machinery and equipment used in such maintenance; resurfacing and restriping of parking areas; repairing the roof of the Shopping Center; and personnel to provide and supervise such services (inclnding wages, unemployment and social security taxes and the cost of uniforms for such personnel); plus an amount equal to ten percent (10%) of the total of all of the foregoing as an agreed upon reimbursement covering tide administrative costs to be incurred by Owner in connection with the operation of the Common Facilities. (B) The term "Operating Cost" shall also include any municipal improvements required by the local monicipality to be made to the Common Facilities including but not limited to traffic signals, stop signs, and road repair. Tenant's Common Facility Contribution for any improvements or repairs required under this Section 7.02(B) shall be obtained by multiplying the cost of the municipal improvements or repairs made to the Common Facilities by Tenant's Percentage Share. (C) The term "Common Facilities" shall mean all areas, space, equipment and special services in or serving the Shopping Center, provided for tide common or joint use and benefit of Owner, the occupants of the Shopping Center, and their employees, agents, servants, customers and other invitees, including, without limitation: any open pedestrian malls; parking areas and parking lot improvements; access roads; driveways; retaining walls; exterior boundary walls and fences; water, sanitary and storm sewer (including 9 any off-site sewer lines which Owner is required to maintain), gas, electric, telephone and other utility lines, systems, conduits and facilities to the perimeter walls of any building (even though intended for the use of only one or a limited number of occupants) and those within a building serving more than one premises, and any of the foregoing which serve the Common Facilities; on or off-site water detention and retention ponds, facilities and systems; on-site trash compactor; plantings; landscaped areas; truck service ways or tunnels; loading dock areas and facilities; the roof and finished ceiling (including lighting) of all Shopping Center canopies; courts; ramps; sidewalks; comfort and first aid stations; washrooms; parcel pick-up stations; any Shopping Center pylon sign; drinking fountains; vertical transportation equipment (including elevators and escalators); auditoriums; community centers; bus stations; and the facilities appurtenant to each and all of the foregoing. (A) Tenant's Common Facilities Contribution shall be paid in monthly installments on the first day of each calendar month during the term in advance, in an amount reasonably estimated by Owner. Owner's estimate of Tenant's Common Facilities Contribution for the calendar year in which this Lease commences is set forth in Section A-1 of the Basic Lease Provisions. Within 90 days after the end of each calendar year during the term, Owner shall fumish Tenant with a statement summarizing the actual Operating Cost for such calendar year and setting forth the method by which Tenant's Common Facilities contribution was determined as herein provided, and Owner and Tenant shall then adjust any overpayment or underpayment by Tenant of Tenant's Common Facilities Contribution for such calendar year with any resultant payment to be due within thirty (30) days. Owner's failure to provide such statement within tile 90 days shall in no way excuse Tenant from its obligations to pay any underpayment or constitute a waiver of Owner's obligations to bill and collect such underpayment from Tenant in accordance with this Paragraph. Any claim by Tenant for revision of any statement submitted by Owner hereonder for any such calendar year which is not made within 90 days after receipt of such statement, shall be deemed waived and discharged. For the calendar year in which this Lease commeoces or terminates, Tenant's Common Facilities Contribution shall be prorated. (B) Any municipal improvements or repairs as contemplated in Section 7.02(B) shall be paid within 30 days of Tenant's receipt from Owner of a payment statement. As such municipal improvements are outside the control of the Owner, the Owner agrees to give Tenant prompt written notice of any municipal improvements or repairs upon Owner's receipt of such notice from the municipality. Section 7.04. Control by Owner. Notwithstanding anything set out in this Lease to the contrary, it is agreed that (i) all Common Facilities shall be subject to the exclusive control and management of Owner, and Owner may permit the owners or occupants of land located outside the Shopping Center and their invitees to use the Common Facilities; (ii) Owner shall have the right to temporarily close all or any portion of the Common Facilities (including parking areas); (iii) Owner shall be required to keep the parking areas lighted from dusk to dawn and not during any daylight hours, and (iv) Owner shall have the right to do and perform such other acts in and to the Common Facilities as Owner shall determine to be advisable with a view to the improvement of the convenience and use thereof by tenants of the Shopping Center and their customers, including the right to permit, in Owner's sole discretion, promotions in and decorations of the sidewalks and parking areas; PROVIDED, HOWEVER, Owner shall maintain the Common Facilities in the Shopping Center in reasonably good order and repair, and shall keep the parking area and other Common Facilities in the Shopping Center reasonably flee of snow, ice and debris and adequately lighted, but these obligations shall not inure to the benefit of any third party nor confer upon any third party any rights or remedies in the event of Owner's failure to perform such obligations. 1~.[¥I'1CI,E Vlll - AI.TERATIONS; SIGNS; SIIRI{ENDER AND TENANT I.IENb; Section 8.01. Allerations Tenant shall not make or cause to be made any alterations, additions or improvements in or to the Leased Premises without submitting to Owner plans and specifications therefor and obtaining Owner's consent thereto. Section 8.02 Surrender~ Title to Improvements: Removal and Restoration by Tenant. (A) On the last day of the term or on the sooner termination thereof, Tenant shall (i) subject to the provisions of Articles XVI and XVII, peaceably surrender the Leased Premises broom clean and in good order, condition and repair except for reasonable wear and tear; (ii) at its expense remove from the Leased Premises the signs, moveable furniture and trade fixtures (including, without limitation, molly-bolts, screws and other items inserted into the walls of the Leased Premises) which were furnished and installed by Tenant at Tenant's sole expense ("Tenant's ProperS") and, if requested by Owner, remove, at Tenant's expense, the carpeting in the Leased Premises, and (iii) deliver to Owner a certificate of inspection from a reputable mechanical systems contractor that the heating, ventilating, air conditioning, electrical and plumbing systems are in good order, condition and repair. Any damage to the Leased Premises caused by Tenant in the removal of Tenant's Property shall be repaired by Tenant at Tenant's expense (including, without limitation, the patching and sanding of molly-bolt holes and other similar type holes in the walls of the Leased Premises). (B) Except for Tenant's property, the title to all alterations, additions, improvements, repairs, decorations, non-trade fixtures, equipment (including heating and air conditioning equipment) and appurtenances attached to or built into the Leased Premises which shall have been made, furnished or installed by or at the expense of either Owner or Tenant in or upon the Leased Premises shall become upon the installation thereof and remain a part of the Leased Premises without disturbance or charge, except that Owner may elect to require Tenant, at Tenant's expense, to remove any or all of such alterations, additions, improvements, non-trade fixtures, equipment, and/or appurtenances, and Tenant shall upon such removal restore the Leased Premises to good condition, subject to ordinary wear and tear. Section 8.03. Tenant's Liens. (A) Before Tenant permits any work, labor, services or materials to be performed for or furnished to the Leased Premises, Tenant shall require any party with whom Tenant contracts to perform said work to Tenant or anyone holding all or any part of the Leased Premises under Tenant to file a stipulation against liens pursuant to §1402 of the Pennsylvania Mechanics' Lien Law of 1963 (49 P.S. §1401, et seq.). (B) Tenant shall not suffer any mechanics' or materialmen's lien to be flied against the Leased Premises or the Shopping Center by reason of work, labor, services or materials performed or furnished to Tenant or anyone holding all or any part of the Leased Premises under Tenant. If any such lien shall at any time be filed as aforesaid, Tenant may contest the same in good faith but notwithstanding such contest, Tenant shall, within 15 days after the filing thereof, cause such lien to be released of record by payment, bond, order of a court of competent jurisdiction, or otherwise. In the event that Tenant fails to take tbe actions that are necessary to cause such lien to be released, then the Owner shall have the right to take whatever actions are necessary to have said liens released. In such event, Tenant agrees to reimburse the Owner for all costs incurred by the Owner, including attorneys' fees. A failure by the Tenant to reimburse the Owner these costs shall be a default by Tenant pursuant to Article XVIII. (C) Tenant shall not create or suffer to be created a security interest or other lien against any improvements, additions or other construction made by Tenant in or to the Leased Premises or against any equipment or fixtures installed by Tenant therein (other than Tenant's Property). Section 8.04. Tenant's Signs. Tenant shall not install any sign, billboard, marquee, awning, placard, lettering, advertising matter or other thing of any kind, whether permanent or temporary, on the exterior of the Leased Premises, or in or on any glass window, window showcase, or door of the Leased Premises until the same has been approved by the Owner in writing. Owner has the right to control the size, location, design and materials of the same for the purpose of establishing and maintaining the appearance of the Shopping Center. ARTICI.E IX - MAINTENANCE OF I.EASED PREMISES: RUI.ES AND REGIJI,ATIOiN;i .01. Main~enarlL " ~Subject to the provisions ofArticles XVI and XVII, Tenant shall, at its sole cost, keep and roaintain the interior of the Leased Premises [together with exterior (i) feature lighting, (ii) windows, including sashes, (iii) heating, ventilating and air conditioning equipment and sewer and other lines serving the Leased Premises exclusively, (iv) doors, including frames, locks, hardware and track, (v) store front of the Leased Premises, and (vi) signs and other equipment referred to in Section 8.04], including without limitation, tile partitions, ceiling, interior portions ofexterior walls, floor covering therein, and the fixtures, equipment, machinery, appliances and utility lines therein and appurtenances thereof [such as, but not limited to, lighting fixtures and lenses and such fixtures, equipment, machinery controls, appliances and utility lines and appurtenances thereof, as are used for, io connection with or which are a part of the electrical, plumbing, heating, air conditioning, ventilating, sprinkler, or any other mechanical systems in or serving the Leased Premises], in conformity with all rules and regulations of Owner% hazard insurer, neat and clean and itl good order, condition, maintenance and repair. Tenant shall also at its cost procure and maintain in the Leased premises all safety appliances required by Owner's hazard insurer to be maintained therein. Tenant shall replace any and all plate, window and other glass (structural or otherwise) in, on or about the Leased Premises, which may be broken or destroyed, with glass of the same or similar qual ry. Before undertaking repairs to the Leased Prer0ise, a.(other than minor interior non-structural re airs, Tenant shall first ' Owner's approval of the pig. srl~-aan~specifications therefor which approval is ~t to)l~e unreasonably wi~bh~ Owner shall authorize orl~ (1) he~ngand.~ond_itioning contractor who shall provide a complete service and maintenance contract~ant who shall b-~he named party on the contract for the changing of filters at least once per month, the monthly inspection of the HVAC equipment serving the Leased Premises, including a written report of the condition there of to be provided to Owner and Tenant, the periodic oiling of the equipment where required, the tightening of belts, the filling of pitch pans and the sealing of water leaks, among other things. The service and maintenance contract and its related costs shall be the sole cost and expense of the Tenant. The existence ora service contract with an Owner approved vendor shall not relieve Tenant of its obligations to maintain and repair such equipment as above provided. Section 9.02 Maintenance by ©wncr~ Subject to the provisions of Articles XVI and XVIi and to the obligations of Tenant under the provisions of Sections 9.01, the foundations, roof (excluding interior ceilings), and exterior portions of the exterior walls (excluding store front) of the Leased Premises shall be maintained by Owner at its expense in good order, condition, maintenance and repair. Owner shall not be deemed to have breached its obligation to make the repairs required of Owner as set forth in this Section, or to be liable for any damages resulting therefrom, unless Owner fails to make the same within a reasonable period (taking into consideration the type of repair involved) after receiving notice from Tenant of the need therefor. Section 9.03. Rules and Reg atinrlS, Tenant agrees to comply with and observe tbe rules and regulations set forth in Exhibit C. Owner reserves the right, at any time, once or more often, by notice to Tenant, to amend or supplement said rules and regulations in a reasonable and non-discriminatory manner. ARTICLE X~4NSIIR-A-N. CE AND INDEMNITY . '~Tenant sball keep ~vitb an insurance com,pany authorized to do business in tile State in wbich /."Section 10.01. l.iability InSl , ( thc-Leased Premises areqocated and which bas a Best s Insurance Guide Rating of A+'XV ("~ualified Carrier"), a Policy of comprehensive public liability insurance, including property damage, witb respect to the Leased Premises and the business operated by Tenant and any other occnpant of the Leased Premises, in which the limits of coverage shall not be less than $3,000,000.00 (combined single limit bodily injury and property damage). Such policy shall also insure the performance by Tenant ofthe indemnity agreement set forth in Section 10.04. In addition to Tenant, the policy shall also name Owner and any other person, firm or coq~oration designated by Owner and in privity with it, as an additional insured. Tenant sball continually provide Owner witb a certificate of such insurance (the first of which shall be provided prior to commencement of Tenant's Work), xvhicb sball provide that the insurer will give Owner at least 30 days' written notice prior to any cancellation of, lapse or material cbange in tbe insurance. The insurance required in this Section and in Section 10.02 may be covered under a so-called "blanket" policy covering other stores of Tenant and its affiliates. .Section 10.02. Fire Insurance. Tenant shall keep in force with a Qualified Carrier fire insurance (with extended coverage and vandalism and malicious mischief coverage), water damage, sprinkler leakage and plate glass insurance, on the standard forms, insuring all of Tenant's Property in the Leased Premises, and all betterments, additiOns, repairs, improvements and alterations made to tile Leased Premises by Tenant, and all plate glass windows, plate glass doors and other plate glass in tbe Leased Premises, in an amount equal to 100% of the replacement cost thereof. The proceeds of such insurance shall be held in trust by Owner and Tenant for use in repairing and restoring the items covered thereby and the proceeds shall be made payable to Owner and Tenant and may only be disbursed jointly by Owner and Tenant. The foregoing policy of insurance shall be issued in favor of and in the names of Owner and Tenant, as their interests may appear, and Tenant shall furnish Owner and the holder of any mortgage on the Leased Premises with a certificate evidencing such coverage, which certificate shall provide that the insurance shall not be canceled, materially amended or allowed to lapse without thirty (30) days' prior written notice thereof being given by the insurance carrier to Owner. Seefinn 10.03. lnsm'ance on Braidings and Improvements in the Slmpl:~'l~ Centcr~ (A) In each calendar year during tile term, Tenant shall pay to Owner an amouut (the "Tenant',~ Insurance Contribution_") equal to a proportion of the "Insurance Cost" (as defined in paragraph (B) of this Section). 'I ' ' enan s Insurance Conmbu ion for each calendar year during tile tem~ shall be that portion of tile Insurance Costs for such calendar year equal to the product obtained by multiplying the Insurance Cost for such calendar year by Tenant's Percentage Share (hereinafter defined in Section 23.04) as of the first day of such calendar year. (B) The term "Insurance Cost" shall mean the total cost of insuring the buildings and improvements in the Shopping Center (including Common Facilities), inclnding public liability, (including "umbrella coverage"), workmen's compensation and hazard insurance (including rental value insurance, fire and exteuded coverage [with vandalism and malicious mischief endorsement]; boiler aud machinery, and all- risk policies). (C) Tenant's Insurance Contribution shall be paid ill monthly installments on the first day of each calendar month during tile term in advance, in an amount reasonably estimated by Owner. Owner's estimate of Tenant's Insurance Contribution for the calendar year in which this Lease commences is set forth in Section A-I of the Basic Lease Provisions. Within 90 days after the end of each calendar year during the term, Owner shall furnish Tenant with a statement summarizing the actual Insurance Cost for such calendar year and settiog forth tile method by which Tenant's Iosurance Contribution was determined as herein provided and O',vnet and Tenant shall then adjust any overpayment or underpayment by Tenant of Tenant's Insurance Contribution for such calendar year with any resultant payment to be due within thirty (30) days. Any claim by Tenant for revision of any statement submitted by Owner hereunder for any such calendar year, which claim is not made within 90 days after receipt of such statement, shall be deemed waived and discharged. For the calendar year in which this Lease commences or terminates, Tenant's Insurance Contribution shall be prorated, if applicable, on the basis ora 360-day year. (D) Tenant shall provide Owoer on an aunual basis with proorofall insurance policies which shall provide tbat the insurer will give tile Owner at least 30 days' written notice prior to any caucellation of, lapse of or material change in the insurance. ,Section 10.04. Ruslnegs Liability lnguranee. Tenant shall keep in force with a Qualified Carrier, a policy to cover business liability, including premises operations liability and business interruption liability, in which the lin'fits of'coverage shall not be less than $1,000,000.00, single limit. In addition to Tenant, the policy shall name Owner as an additional insured. Tenant shall continually provide Owner with a certificate of such insurance which shall provide that tile insurer will give the Owner at least 30 days' written notice prior to any cancellation of, lapse or material change in the insurance. .Section 10.05. lndemn fication, Tenant will, subject to the provisions of Section 10.06, indemnify, save harmless and defend Owner and its officers, agents and servants, from and against any and all claims, actions, liability and expense in connection with loss of life, bodily injury and/or damage to property arising from or out of any occurrence in, upon or at the Leased Premises, or the occupancy or use by Tenant, its agents, employees, servants, subtenants, licensees or concessionaires, of the Leased Premises or any part thereof, or outside the Leased Premises which is occasioned wholly or in part by any willful or negligent act or omission of Tenant, its agents, employees, servants, subteuants, licensees or coucessionaires, unless the same be caused by the willful or negligent act or omission of Owner, its agents, employees or servants. Section 10.06. Waiver nfSuhrogation: l.imitation of I.iahility. (A) Anything in this Lease to the contrary notwithstanding, it is agreed that each party (the Releasing Party ) hereby releases the other (tile "Released Party") from any liability which the Released Party would, but for this Section 10.05, have had to the Releasing Party during the term of this Lease, resulting from the occurrence of any accident or occurrence or casualty (i) which is or would be covered by an "all-risk" policy (irrespective of whether such coverage is being carried by the Releasing Party), or (ii) covered by any other casualty or property damage insurance being carried by the Releasing Party at the time of such occurrence, which accident, occurrence or casualty may have resulted in whole or in part from any act or neglect of the Released Party, its officers, agents or employees; PROVIDED, HOWEVER, the release hereinabove set forth shall become inoperative and null and void if the Releasing Party wishes to place the appropriate insurance with an insurance company which (a) takes the position that the existence of such release vitiates or would adversely affect any policy so insuring the Releasing Party in a substantial manner and notice thereof is given to the Released Party, or (b) requires the payment o£a higher premium by reason o£the existence of such release, unless in the latter case the Released Party within 10 days after notice thereof from the Releasing Party pays such increase in premium. (B) Anything in this Lease to the contrary notwithstanding, it is agreed that Owner shall not be liable for any damage arising from the willful or negligent act or omission of any other tenant or occupant of the Shopping Center. Sectinn 10.07. Notice by Tenant. Tenant shall within 24 hours after the occurrence of any casualty damage to or accidents in tile Leased Premises, give Owner notice of such casualty damage or accident. ARTICI.E XI- [ITII.ITIE.'q Sectiml I 1.01. Utility Char~es Tenant shall contract in its own name for and promptly pay all charges for electricity, gas, water, sewer, telephone and any other utility used or consumed in the Leased Pren'fises to the concern £umishing the same. In the event that separate service arrangements cannot be provided for any of the above, then the Tenant agrees to pay their proportionate share of the utility charges which shall be collected as part of the Common Facilities Contribution set forth in Article VII herein. Section 11.02. Owner's Liabili .ty for Interruptiorh Owner shall not be liable in any way to Tenant or to any other party occupying any part of the Leased Premises for any failure or defect in or o£any utility service furnished to the Leased Prenfises or the Common Facilities, by reason ofany requirement, act or omission of the public utility company serving the Shopping Center with electricity, water or other utility service, or because of necessary repairs or improvements, or by reason of any cause referred to in Section 23.02. ARTICI.E XII - ESTOPPEl, CERTIFICATE; ATTORNMENT; PRIORITY OF I,EASE: RIGHTS MORTGAGEE Section 12.01. Estoppel Certificate. Tenant agrees, within 10 days after written request by Owner, to execute, acknowledge and deliver to and in favor of any proposed mortgagee or purchaser of the Shopping Center, an estoppel certificate, in the form customarily used by such proposed mortgagee or purchaser, evidencing the status of performance under this Lease and the terms ofthis Lease. Tenant agrees, within 10 days after written request by Owner, to deliver to Owner a current financial statement of Tenant, duly certified by an officer thereof (if Tenant is a corporation) and an independent certified public accountant and such other financial information of Tenant as Owner shall reasonably request. Section 12.02. AttornmenL Tenant shall, in the event any proceedings are brought for the foreclosure of, or in the event of the exercise of the power of sale under, any mortgage made by Owner covering any part of the Shopping Center, or in the event of any sale of the Shopping Center, attom to the purchaser upon any such foreclosure or sale and recognize such purchaser as Owner under this Lease. Upon the request of any interested party, Tenant shall execute, acknowledge and deliver an instrument, in form and substance satisfactory to such party, evidencing the attomment provided for in this Section. Sec~~e~ Upon ,,witten request of the holder of any first mortgage now or hereafter coveriug any part of the Shopping Center, Tenant will subordinate its rights under this Lease or make this Lease prior in right and priority to the lien thereof and to alt advances made or hereafter to be made upon the security thereof, and Tenaut shall, within ten (10) days after written demand therefor, execute, acknowledge and deliver an instrument, in the form customarily used by such encumbrance holder, effecting suell priority; PROVIDED, HOWEVER, at the option of the holder of such mortgage, such holder shall be entitled to eft'eot such priority by filing a unilateral declaration to that effect with the recorder of deed in tile County and State in which the Leased Prenfises is located. Section 12 04. Rights of Owner's Mortgagee. Within 10 days after demand by tile holder of any mortgage covering all or any part of the Shopping Center, Tenant shall execute, acknowledge and deliver an agreement in favor of and in the form customarily used by such encumbrance holder, by the terms of which Tenant will agree to give prompt notice to such encumbrance holder in the event of any casualty damage to the Leased Premises or in the event of any default on the part of Owner under this Lease, and will agree to allow such encumbrance holder a reasonable length of time (taking into consideration for the purpose of determining such pemfitted length of time any delays encountered by reason of any of the causes referred to in Section 23.02), after notice to cure or cause the curing of such default before exercising Tenant's rights of self-help under this Lease, if any, or tercninating or declaring a default under this Lease. In addition, within 10 days after demand by the holder of any such mortgage or after demand by owner, Tenant shall deliver to such encumbrance holder a current financial statement of Tenant and such other financial information as such holder or Owner shall reasonably request. ARTICLE XIII - ASSIGNMENT. S[IBI,ETTING AND CORPORATE OWNERSHIP Section 13.01. Consent Required (A) Tenant shall not voluntarily, involuntarily or by operation of law assign or encumber this Lease, in whole or in part, nor sublet all or any part of the Leased Premises without the prior consent of Owner in each instance. Notwithstanding any assignment or subletting, Tenant shall remain fully liable under this Lease and shall not be relieved from performing any of its obligations hereunder. As a condition to any assignment of this Lease by Tenant which is pemritted under this Lease, the assignee thereof shall be required to execute and deliver to Owner an agreement in recordable form, whereby such assignee assumes and agrees with Owner to discharge all obligations of Tenant under this Lease. (B) IfTenant shall request Owner's consent to an assignment o f this Lease and O~vner shall consent thereto, the assignee ("Assignee") shall pay directly to Owner, as additional rent hereunder, at such times as the Assignee shall have agreed to pay Tenant, an amount equal to any consideration the Assignee shall have agreed to pay Tenant on account of such assignment. If Assignee shall fail to pay Owner any such consideration when due, such failure shall constitute a default under this Lease. (C) If Tenant shall request Owner's consent to a subletting of the Leased Premises or any part thereof and Owner shall consent thereto, Tenant shall pay Owner, as additional rent, in addition to the Annual Minimum Rent and other charges payable hereunder, an amount equal to any consideration paid by the subtenant to Tenant in excess of (i) the Annual Minimum Rent and other charges payable hereunder if all of the Leased Premises are so sublet or (ii) if less than all of the Leased Premises are so sublet, the Annual Minimum Rent and other charges payable hereunder allocable to the portiou of the Leased Premises so sublet based on the number of square feet of Gross Leasable Area in the Leased Premises so sublet divided by the total number of square feet of Gross Leasable Area in the Leased Premises prior to such subletting. The foregoing amount shall be determined monthly and paid by Tenant to Owner on the first day of each calendar month in advance during the term of such sublease. If Tenant shall fail to pay Owner any such consideration, such failure shall be a default under this Lease. Section 13.02. Corporate Ownershi.~ If at any time during the term a cumulative total of more than 49% of the voting stock of Tenant (it Tenant shall be a corporation) sllall be transferred, directly or indirectly, by sale, assignment, gift or in any other manner, any such transfer shall, unless made with Owner's prior consent, be deemed an unauthorized assignment of this Lease and a default by Tenant under this Lease. Section 13.03. Owner's Right to Assign. If Owner conveys or transfers its interest in this Shopping Center or in this lease (which sale or transfer may be effected without Tenant's consent), upon such conveyance or transfer, Owner (and in the case of any subsequent conveyances or transfers, the then grantor or transferor) shall be released of and from all liability with respeet to the performance of any covenants and obligations on the part of O~vner to be performed after the date of such conveyance or transfer; it being intended hereby that the covenants and obligations on the part of Owner to be performed under this Lease shall, subject to the provisions of Section 21.01, be binding on Owner, its successors and assigns, only during and in respect oftheir respective periods of ownership of an interest in the Shopping Center or in this Lease. ARTICI.E XIV - WASTE: HAZARDCJUS WASTE: GOVERNMF. NTAL AND INSURANC, I,i REGI JI.ATIONS i Sectio~ 14.01. Waste or Nuisance. Tenant shall not commit or suffer to be committed (i) any waste in or upon the Leased Premises or (ii) any nuisance or any other act or thing (whether a nuisance or otherwise) which may disturb the quiet enjoyment of any other tenant or occupant in the Shopping Center or its or their customers or other invitees. Section 14.02. Ha~ardou.~ Waste. (A) Tenant hereby covenants, represents and warrants that it shall not generate, transport, handle, store or othep,vise encounter in, on or about the Real Property, any hazardous waste or substance (for pu~oses ofthis Section herein called "hazardous waste") as defined by the applicable federal, state or local enwronmental or occupational standards, including but not limited to material defined as such in, or for purposes of, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Hazardous Materials Transportation Act (49 U.S.C. §1802 et seq.), the Resource Conservation and Recovery Act ('RCRA") (42 U.S.C. §1802, et seq.), tbe Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.), the Safe Drinking Water Act (42 U.S.C. §300(0, et seq.), the Toxic Substance Control Act (15 U.S.C. §2601, ed aeq.), the Clean Air Act (42 U.S.C §7401, et .seq.), or any other federal, state or local statute, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance, element or material as now or at any time hereafter in effect or amended (for purposes of this Section herein collectively called the "Laws"). Tenant further covenants, represents and warrants that there will be no underground storage tanks in, on, tinder, within or about the Real Property. (B) Tenant shall not use, store or permit to be stored on the Leased Premises any asbestos in any form, urea formaldehyde foam insulation, transformers or other equipment which contains dielectric fluid or other fluids containing levels of polychlorinated biphenyls in excess of fifty (50) parts per million. If Tenant shall utilize the Leased Premises for medical office purposes, Tenant shall dispose of all syringes, blood products, "sharps", medical instruments and all other types of medical waste in a safe, clean, sanitary manner and in accordance with all applicable laws and regulations. (C) Tenant covenants, represents and warrants that it will indemni fy and hold Landlord harmless from and against any and all liability, actions, claims, losses, damages and expenses arising out of, or in any way relating to, a breach of the representations, warranties, covenants and agreements set forth in this Section, including: (a) claims of third parties (including governmental agencies) for damages, including personal injury or property damages, penalties, response costs, injunctive or other relief; (b) costs or removal and restoration, including fees. of attorneys and experts, costs of reporting to any governmental agency the existence of hazardous substances, hazardous waste, pollutants and/or contaminants and costs of preparing or causing to be prepared any and all studies, tests, analyses or reports in connection with any environmental matter; (c) all expenses or obligations, including attorneys' fees, incurred at, before and after any trial or appeal therefrom whether or not taxable as costs, including attorneys' fees, witness fees, deposition costs and other expenses; (d) all other costs, expenses and liabilities arising from Tenant's violation of the laws or any other environmental regulation now in force or hereafter enacted; and (e) Tenant's disposal of medical waste as set forth in paragraph (A) above. The obligations of Tenant as contained in this Section shall survive the termination of the Lease. Section 14.03. Govermnental and Inm~ranee Regulations. Tenant shall, at Tenant's sole cost, comply with all of the requirements of all governmental authorities (including without limitation those requiring replacements, additions, repairs and alterations, [structural or otherwise]), and with all directions, roles, regulations and recommendations of Owner's hazard insurer, now in force, or which may hereafter be in force, pertaining to (i) the Leased Premises, (ii) all of Tenant's Property in the Leased Premises and (iii) the use and occupancy of the Leased Premises. ARTICLE XV - MERCHANTS ASSOCIATION Section 15.01. Merchants' Associatinrl, '-----'-' .... If Owner or the tenants of the Shopping Center shall elect to form a Merchant's Association, Tenant~ shall become a member of, as soon as formed, partici )ate fully and remain in good standing in an assoc ation (the "Asmc. Jalion"), the object of which shall be the general furtherance of the business interests of tenants in the Shopping Center by sales promotions. Tenant agrees to pay monthly dues to the Association in the amount from time to time established by the Association. So long as the Association is in full force and effect and Tenant and the other tenants of thr:.e' Shopping Center are members thereof and are paying dues thereto, Owner shall not create a Promotion Fund or require Tenant to pay any sums to a Promotion Fund Only such Shopping Center tenants who subsequently agree with Owner or have previously agreed througly/ a similar clause in their own Lease Agreement with Owner shall be bmmd by such a Merchant's Associafliofi. ~.,Section 15.02. Promotion Fui~.k__. If an Association is not formed by the tenants of tile Shopping Center or Owner, or if an Association is formed but is inactive or ceases to exist (i.e. Tenant and file other tenants are not required to pay or are not paying dues to the Association), then Owner may cause a Promotion Fund (the "Promotion Fund") to be established. The Promotion Fund shall be used solely for center ,,vide advertising, protnotion and public relations and administrative expenses relating thereto (including the hiring ora Promotion Director) at such times and in such manner as shall be determined by Owner. Upon the establishment of the Promotion Fund, and in each calendar year thereafler during tile term, Tenant shall pay to Owner, for deposit by Owner in tile Promotion Fund, an amount per annum (the "Promotion Charge"), equal to tile greater of(i) a sum computed by moltiplying the number of square feet of Gross Leasable Area in the Leased Premises by 0.10, or (ii) $600.00, subject, however, to adjustn)ent as hereinafter provided. At the end of each calendar year during the term, the amount computed in the preceding sentence shall be adjusted upward (but not downward) for the next ensuing calendar year in the same percentage proportion that the "Consumer's Price Index, Philadelphia area (CPI) shall have increased over the price index for the first full calendar month of the term ofthis Lease. In the event (i) the CPI is discontinued, comparable statistics on the purchasing power of the consumer dollar, as published at the time of said discontinuation by a responsible financial periodical of recognized authority selected by Owner, shall be used for making the above computation, and (ii) the base year or other base year used in computing the CPI is changed the figures used in making the foregoing adjustments shall accordingly be changed so that all increases in the CPI are taken into account notwithstanding any change in the base year. The annual charge payable by Tenant under this paragraph shall be paid in equal monthly installments on the first day of each calendar month in advance and shall be prorated for any partial calendar month or partial calendar year during the term of this Lease. Only such Shopping Center tenants who subsequently agree with Owner or who have previously agreed through a similar clause in their own Lease Agreement with Owner shall be required to contribute to the Promotion Fund. 19 ' Section 15.03. Advertising. Tenant agrees to advertise Tenant's business in the Leased Premises in special Shopping Center newspaper sections or tabloids (or in electronic media) sponsored by Owner or by the Association for advertising by tenants in the Shopping Center; and in connection therewith, if Owner or the Association designates print media, Tenant agrees to purchase, not less than four (4) times each calendar year, advertising space therein in accordance with the following schedule. Gross Leasable Area Required Size of Advertisement Tabloid Newspaper 10,001 square feet or more 1 page V: page 5,001 to 10,000 square feet V: page Va page 5,000 square feet or less ¼ page % page If Owner or the Association designates electronic media advertising, Tenant shall purchase advertising time therein equivalent in cost to the cost of the aforesaid print media requirement and such electronic media advertising shall be applied toward Tenant's performance of its minimum advertising requirement hereunder. Any advertising done by Tenant pursuant to this paragraph or other wise with respect to the Leased Premises shall in the advertising copy name the Shopping Center and the address of the Shopping Center. If Tenant shall fail to timely submit its copy of such advertising, Owner shall have the right (but not the obligation), in addition to its other rights and remedies, to submit copy consisting of'Fenant's Trade Name (or such trade name as Tenant may then be using in the operation of the Leased Premises) and the address of the Leased Premises, to the printer (or to the electronic media representative, as the case may be) for inclusion in such advertising media on behalf of and for the account ofTenant, lfTenant shall fail to pay .for such advertising, then Owner may (but shall not be obligated to) pay the cost thereof, and all sums so expended by Owner shall be reimbursed by tenant to Owner upon demand and shall constitute additional rent. Within 30 days following the end of each calendar year, Tenant shall submit to Owner a statement, certified by Tenaot (or by an officer of Tenant), showing the amounts expended by Tenant for advertising its business in the Leased Premises as required in this paragraph, and, to the extent such expenditures shall be less than that required by this paragraph, the amount of such deficiency shall be payable by Tenant to the Association or the Promotion Fund, as the case may be, with its next installment of dues to the Association or the Promotion Fund, as the case may be. Only such Shopping Center tenants who subsequently agree with Owner or such tenants who have previously agreed through a similar clause in their own Lease Agreement with O~vner shall be bound by this Advertising requirement. 20 ARTICI.E XVI - DESTRI }'CT[ON Section I 6.01. Destrnctiun of I.ea~ed Premises. (A) If the Leased Premises are damaged or destroyed by fire or other casualty insurable under standard fire and extended coverage insurance so as to become partially or totally untenantable, the same, unless this Lease is terminated as provided in paragraph (B), shall be repaired and restored by Owner and Tenant with due diligence, and during such restoration period, the Annual Minimum Rent (but not the Annual Percentage Rent) and other charges payable hereunder shall equitably abate to the extent the Leased Premises are materially affected thereby. Owner's obligation under this paragraph (A) to repair and restore shall be limited to the repair and restoration of those parts of the Leased Premises which were originally constructed and or installed by Owner at its expense including but not limited to Owner's Work set forth in Exhibit B. All other repair and restoration shall be the responsibility and at the expense of the Tenant. (B) If the Leased Premises are damaged or destroyed to the extent the cost of restoration thereof would exceed 15% of the amount it would have cost to replace the Leased Premises in its entirety at the time such damage or destruction occurred, then Owner may elect to terminate this Lease by giving notice to Tenant of its election to do so within 30 days after such occurrence. If Owner exercises its right to terminate this Lease, then this Lease shall cease, effective as of the date of such damage or destruction, and all rent and other charges payable by Tenant shall be adjusted as of that date. Section 16.02. Destruction of Shopplng Center. Notwithstanding anything to the contrary set forth in Section 16.0t, in the event all or any portion of the Shopping Center shall be damaged or destroyed by fire or other cause (notwithstanding that the Leased Premises may be unaffected thereby), to the extent the cost of restoration thereof would exceed 25% of the amount it would have cost to replace the Shopping Center in its entirety at the time such damage or destruction occurred, then Owner may terminate this Lease by giving to Tenant 30 days' prior notice of Owner's election so to do, which notice shall be given, if at all, within 90 days following the date of such occurrence. In the event of the termination of this Lease as aforesaid, this Lease shall cease 30 days after such notice is given, and the rent and other charges hereunder shall be adjusted as of that date. ARTICLE XV[I - EMINENT DOMAIN Section 17.01. Condemnation of Leased Premises. In the event of any condemnation or conveyance in lieu thereof of the Leased Premises or the Shopping Center, or both, whether whole or partial, Owner may terminate this Lease, and in any event, Tenant shall have no claim against Owner or the condenming authority for the value of the unexpired term, and Tenant shall not be entitled to any part of the compensation or award, whether paid as compensation for diminution in value to the leasehold or to the fee of the Leased Premises, and Owner shall receive the full amount thereof, Tenant hereby waiving any right to any part thereof and assigning to Owner its interest therein. (--5 Section 1801. Defantt by Tenant. ~ If the Annual Mininmm Rent, Annual Percentage Rent, additional rent, or any other charge payable by Tenant under this Lease shall be unpaid on the date payment is required by the terms hereof and shall remain so for a period of 5 days after Owner gives Tenant notice of such default, or if Tenant fails to perform any of the other terms, conditions, covenants and obligations of this Lease to be observed and performed by Tenant for more than 21 days after Owner gives Tenant notice of such default (it being agreed that a default, other than the failure to pay money, which is of such a character that rectification thereof reasonably requires longer than said 21 day period and completes the same with due diligence), or if Tenant shall vacate or abandon the Leased Premises (it being agreed that, subject to the provisions of Articles XVI and XVII and to Section 23.02, Tenant's failure to operate its business in the Leased Premises for seven consecutive days or more shall conclusively be deemed an abandonment) or suffer this Lease to be taken under any writ of execution, attachment or other process of law, or if this Lease shall by operation of law devolve upon or pass to any other party other than a party, if any, to wbom Tenant is authorized to assign this Lease by the provisions of Section 13.01, or if an "Act of Bankruptcy" (as defined in Section 18.02) shall occur, or if Owner shall have notified Tenant of Tenant's default three (3) or more times in any twelve calendar month period, then, in any of such events, Owner shall have, besides its other rigbts or remedies, the following immediate rights: (1) At its option, to t~tbis Lease and the term hereby created without any right on the part of Tenant to waive the forfei[ure by payment of any sum due or by other performance of any condition, term or covenant broken, whereupon Owner slmll be entitled to recover, in addition to any and all sums and damages for violation of Tenant's obligations hereunder in existence at the time ofsucb temfination, damages for Tenant's default in an amount equal to the amount of the rent reserved for the balance of the term of this Lease, as well as all other charges, payments, costs and expenses herein agreed to be paid by Tenant, all discounted at the rate of six percent (6%) per annum to their then present worth, less the fair rental value of the Premises for the remainder ofsaid term, also discoonted at the rate of six pereent (6%) per annum to its then present worth, all of which amount shall be immediately due and payable from Teuant to Owner. (2) At its option, by notice to Tenant, to re-enter and take possession of tbe Leased Premises without terminating this Lease. No re-entry or taking possession of the Leased Premises by Owner pursuant to this clause (2) shall be construed as an election on its part to terminate this Lease unless a notice of such intention is given to Tenant (all other demands and notices of forfeiture or other similar notices being hereby expressly waived by Tenant). (3) At its option, to require that upon (i) any ternfination of this Lease, whether by lapse of time or by the exercise of any option by Owner to terminate the same or in any otber manner whatsoever, or (ii) any termination of Tenant's right to possession without termination of this Lease, Tenant shall immediately surrender possession of the Leased Premises to Owner and immediately vacate the same, and remove all effects therefrom, except such as may not be removed under other provisions of this Lease. (4) At its option, to make such alterations and repairs as Owner shall determine may be reasonably necessary to relet the Leased Premises, and to relet the same or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and upon such terms and conditions as Owner in its sole discretion may deem advisable. Upon each reletting, all rentals received by owner from such reletting shall be applied as follows: first, to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant to Owner; second to the payment of any reasonable costs and (" 5 22 expenses of such reletting, inclnding brokerage fees and attorneys' fees and costs of such alterations and repairs, each of which fees and costs shall be reasonable in amount; and third, to the payment of rent and other charges due and unpaid hereunder, ltl no event shall Tenant be entitled to receive any surplus of any sums received by Owner on a reletting in excess ofthe rental and other charges payable hereunder. If such rentals and other charges received from such reletting during any month are less than those to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Owner (notwithstanding the fact that Ow~er may have received rental in excess ofthe rental and other charges payable hereunder in previous or subsequent months), such deficiency to be calculated and payable monthly. Notwithstanding any reletting without termination, Owner may at any time thereafter elect to terminate this Lease for such previous breach in the manner provided in this Section. (5) If Tenant shall default in the payment of the rent herein reserved or in the payment of any other sums due hereunder by Tenant, Tenant hereby authorizes and empowers any Prothonotary or attorney of any court of record to appear for Tenant in any and all actions which may be brought for said rent and/or said other sums; and/or to sign for Tenant an agreement for entering in any competent court an amicable action or actions for the recovery of said rental and/or other sums; and in said suits or in said amicable action or actions to confess judgment against Tenant for all or any part of said rental and/or said other sums, including but not limited to the amounts due from Tenant to O~vner under subparagraphs (1), (2), (3) and/or (4) of the Paragraph; and for interest and costs, together with any attorneys' commission for collection often percent (10%). 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 rental and/or other sums shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the initial term of this Lease and/or during any extended or renewal term of this Lease and/or after the expira/t.jon/pf any extended or renewal term of this Lease. / ,W/5~:;~-~ -~ ~0 (6) When this Lease and the ten'n of any extension or renewal thereof shall have been terminated on account of any default by Tenant hereunder, and also when the term hereby created or any extension or renewal thereof shall have expired, it shall be lawful for any attorney of any court of record to appear as attorney for Tenant as well as for all persons clain'fing by, through or under Tenant, and to sign an agreement for entering in any competent court an amicable action in ejectment against Tenant and all persons claiming by, through or under Tenant and therein confess judgment for the recovery by Owner of possession of the Premises, for which this Lease shall be his sufficient warrant; thereupon, if Owner so desires, an appropriate writ of possession may issue forthwith, without any prior writ or proceeding whatsoever, and provided that if for any reason after such action shall have been commenced it shall be determined that possession of the Premises remain in or be restored to Tenant, Owner shall have the right for the same default and upon any subsequent default or defaults, or upon the termination of this Lease or Tenant's right of possession as hereinbefore set forth, to bring one or more further amicable action or actions as hereinbefore set forth to recover possession of the Premises aod confess judgment for the recovery of possession of the Premises as hereinbefore provided. ~,,"~'~ .-~ 5/) ~'~(Tenant),;~ /- (7) In any amicable action of ejectment and/or for rent and/or other sums brought hereon, Owner shall first cause to be filed in such action an affidavit made by Owner or someone acting for Owner, setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be prima faeie evidence, and if a true copy of this Lease (and of the truth of the copy such affidavit shall be sufficient evidence) shall be filed in such suit, action or actions, it shall not be necessary to file the oril~in~,~ as a wan-ant ofattorney, any rule or Court, custom or practice to the contrary notwithstanding. ~ //~/.~-.~ff"~ <3~ 23 (8) At its option, to collect from Tenant any other loss or damage which Owner may sustain by reason of any breach and any diminished value of the Leased Premises resulting from said breach. Tenant hereby waives and releases all errors and defects which may intervene in the Owner's exercise of any of its remedies hereunder, including the summary remedies; Tenant further waives the right of inquisitioo on any real estate levied on and Tenant voluntarily consents to an immediate execution upon any judgment obtained by Owner; Tenant also waives and releases all relief from any and all appraisement, stay or exemption law of any state now in force or hereafter engeted; Tenant waives any notice to quit required by any law now in force of hereafter enacted. /"'"'v'//)Z,_.,~:.~ l- ? ..~ Nothing in this Section shall be deemed to limit Owner's rights and remedies in the event of a default by Tenant, and tile Owner's rights and remedies set forth in this Lease shall be in addition to those available to Owner at law or in equity. Section 18.02. Bankruptcy. (A) If at any time prior to or after the commencement of the term of this Lease there shall be filed by Tenant or Guarantor, in any court pursuant to any statute either of the United States or of any State, a petition in bankruptcy (including, without limitation, a petition for liquidation, reorganization or for adjustmeot of debts of an individual with regular income), or if any case, proceeding or other action shall be commenced seeking to have ao order for relief entered against Tenaot or Guarantor as a debtor in bankruptcy proceedings or to adjudicate Tenant or Guarantor a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts noder any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action results in the entry of an order for relief or is not dismissed within 30 days of the filing thereof, or if Tenant or Guarantor becomes insolvent or is generally not paying or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors or petitions for or enters into an arrangement with its creditors or a custodian is appointed or takes possession of Tenant's or Guarantor's property (whether or not a judicial proceeding is instituted in connection with such arrangement or in connection with tile appointroent of such custodian), or ifTenant or Guarantor shall take any action to authorize or in contemplation of any of the events set forth above (each of the foregoing events to be hereinafter referred to as an "Act of Bankrn~Cy_"), then, in addition to Owner's other rights and remedies under this Lease and applicable law, this Lease shall, at Owner's option (and if permitted by law), be temfinated, in which event neither Tenant nor Guarantor, nor any person claiming tl~ough or under Tenant or Guarantor or by virtue of any statute or of an order of any court, shall be entitled to possession of the Leased Premises, and Owner, in additioo to the other rights and remedies given by this Lease, or by virtue of any statute or rule of law, may retain as liquidated damages any rent, Security Deposit or moneys received by Owner from Tenant or others in behalf of Tenant. All rent, additional rent and other charges payable by Tenant under this Lease shall constitute rent for the purpose of applying the provisions of Section 502(b)(7) of the Federal Bankruptcy Code. (B) In the event an act of bankruptcy shall occur and this Lease is not terminated pursuant to the provisions of paragraph (A), the parties agree that: (i) If there shall be a default in the payment of Annual Minimum Rent or any additional rent, or a default in the observance or performance of any other provision of this Lease binding on Tenant, Owner shall be entitled to immediately discontinue 5 24 fomishing any utilities and other services it has been providing to the Leased Premises, until sacb time as such defaults bare been fully cured, it being agreed that the lbregoing action by Owner shall in no ~vay cause or result in any abatement of Annual Minimom Rent or any other charge payable by Tenant during the continuance of the term of this Lease. (ii) If the Lease is assumed by a trustee ill bankruptcy, and assigned by the trustee to a third party, then such party shall (w) execute and deliver to Owner an agreement in recordable form whereby such party confirms that it has assumed and agrees with Owner to discharge all obligations (including, without limitation, the provisions of Article VI respecting the Permitted Use of the Leased Premises and the manner of operation thereof) binding on Tenant under this Lease, (x) represent and warrant in writing to Owner that such party has a net worth and operating experience at least comparable to that possessed by Tenant named herein and Guarantor as of the execution of this Lease, (y) deposit with Owner a Security Deposit and advance rent equal to that initially deposited by Tenant named herein, and (z) grant Owner, to secure the performance of such party's obligations under this Lease, a security interest in such party's merchandise, inventory, personal property, fixtures, furnishings, and all accounts receivable (and in the proceeds &all of the foregoing) with respect to its operations in the Leased Premises, and in connection therewith, such party shall execute such security agreements, financing statements and other documents (the forms of which are to be designated by Owner) as are necessary to perfect such lien. (iii) Lease shall be deemed a lease of"Nonresidential Real Property" within a "Shopping Center" for the purpose of Section 365 of the Federal Bankruptcy Code. (C) Any person or entity to which tiffs Lease is assigned pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101, e2 ~ (the "Banknlptcy Code") shall be deemed without further act or deed to have assumed all of the obligations arising under this Lease on and after the date of such assignment. If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Comte, any and all monies or other considerations payable or otherwise lo be delivered in connection with such assignment shall be paid or delivered to Owner, shall be and remain the exclusive property of Owner and shall not constitute property &Tenant or of the estate of Tenant within the meaning &the Bankruptcy Code. Any and all monies or other considerations constituting Owner's property under the preceding sentence not paid or delivered to Owner shall be held in trust for the benefit of Owner and be promptly paid or delivered to Owner. Section 18.03. Owner's Right to Core DefaolB. If Tenant fails to perform any agreement or obligation on its part to be performed under this Lease, Owner shall have the right (i) if no emergency exists, to perform the same after giving 15 days' notice to Tenant; and (ii) in any emergency situation, to perform the same immediately without notice or delay. For the purpose of rectifying Tenant's defaults as aforesaid, Owner shall have the right to enter the Leased Premises. Tenant shaH, on demand, reimburse Owner for the costs and expenses incurred by Owner in .rectifying Tenant's defaults as aforesaid, including reasonable attorneys' fees. Owner shall not be liable or ~n any way responsible for any loss, inconvenience, annoya ~ce, or damage resulting to Tenant or anyone holding under Tenant for any action taken by Owner pursoant to this Section. Section 18.04 SecuriLy Deposit. (A) Teoant, contemporaneously with the execution of this Lease, has deposited with Owner tile sunr designated as the "Security Deposit" in A-1 of the Basic Lease Provisions, receipt of which is hereby acknowledged. The Security Deposit shall be held by Owner, without liability for interest, as security for tile faithful performance by Tenant of all of the terms, covenants and conditions of this Lease by Tenant to be performed. Owner shall not be required to hold tile Security Deposit as a separate fund, but may commingle it with other funds. If after the execution of this Lease Agreement and Owner's receipt of the Security Deposit, Tenant would fail to commence under the terms of this Lease Agreement, Tenant shall forfeit the Security Deposit which shall be retained by Owner, this Lease Agreement shall terminate and all of the Owner and Tenants obligations hereunder shall become null and void. (B) If at any time during the term any Annual Minimum Rent, Annual Percentage Rent, or additional rent payable by Tenant shall be overdue, or if Tenant fails to perform any of the other terms, covenants or conditioos to be performed by Tenant, then Owner, at its option, may appropriate and apply all or any portion of the Security Deposit to the payment of any such overdue Annual Minimum Rent, Annual Percentage Rent, or additional rent and to the compensation of Owner for loss or damage sustained by Owner due to a breach by Tenant as aforesaid, without prejudice to Owner's other remedies. Should all or any part of the Security deposit be appropriated and applied by Owner as provided above, then Tenant shall, upon demand of Oxvner, forthwith remit to Owner a sufficient amount in cash to restore the same to the original sum deposited. Should Tenant comply with all of the temps, covenants and conditions of this Lease binding on Tenant, the Security Deposit shall be returned in full to Tenant within 60 days after the later of the following dates: (i) the date of expiration of the term or (ii) the date Tenant shall deliver to Owner such inspection reports as Owner shall require settiog forth that the Leased Premises were surrendered io accordance with Section 11.02 of this Lease. ALTERNATIVE SECTION= NO DEPOSIT ltl lieu of the collection ora Security Deposit, Tenant agrees lo pay to Owner tile sore or ~u m o ~ Dollars ($ I~'~s.~,~,~as earnest money which represents the first months rent including the monthly estimated charges specified in Section A-I contemporaneously with the execution of this Lease, receipt of which is hereby ackmowledged. Said sum shall be held by Owner, without liability for interest, and applied to the first monthly rent when due. Owner shall not be required to hold the earnest money as a separate fund, but may comingle it with other funds. If after the execution of this Lease Agreement and Owner's receipt of the earnest motley, Tenant would fail to commence uoder the terms of this Lease Agreement, Tenant shall forfeit the earnest money which shall be retained by Owner, this Lease Agreement shall terminate and all of the Owner and Tenants obligations hereunder shall become null and void. ARTICI,E XIX - ACCESS BY OWNER Section t901. Right ofF, ntry. Owner and its designees shall have the right to enter the Leased Premises during reasonable business hours (except in the event of emergency, when Owner may enter at any time) for all lawful purposes (including the right to show the Leased Premises to prospective purchasers of the Shopping Center, and, during tile last six months of the term, the right to show the Leased Premises to prospective tenants) and to whatever extent necessary or appropriate to enable Owner to exercise all of its rights under this Lease (including without limitation tile right to perform certain provisions of this Lease on Tenant's behalf as set forth in Section 18.02) and to carry out all of Owner's obligations hereunder. Owner and Owner's 26 representatives shall also have the right to enter the Leased Premises and to erect scaffolding and barricades around the same (but not so as to preclude enlry thereto) in order to make such repairs, alterations, improvements and additions to tile building of which tile Leased Premises form a part and the tbundations and walls ofthe Leased Premises as Owner may deem necessmT or desirable (and Owner shall be allowed to take alt equipment and material upon the Leased Premises which may be required therefor), but Owner shall use reasonable efforts consistent with accepted construction practice to minimize interference to Tenant's business caused by reason thereof. The exercise by Owner ofits rights of entry and other rights granted under this paragraph shall not constitute an eviction of Tenant and the rent payable under this Lese shall not abate by reason thereof. ARTICLE XX - ARBITRATION; R[GIIT TO APPEAl. ~ ' ~sa reement between Owner and Tenant witl ........ ~ olsagreement oe a respect to the interpretation or appfication ot tills Lease, br tile obi gat~o~'~-of the parties hereunder, shall be determined by arbitration unless the parties otherwise mutually agree in writing. Owner and Tenant shall agree upon one arbitrator, otherwise there shall be three (3), one named in writing by the Owner and one named in writing by the Tenant within ten (I0) days after notice of arbitration is served by either upon the other, and a third arbitrator selected by those two arbitrators within ten (10) days thereafter. No one shall serve as an arbitrator who is in any way financially interested in this Lease or in the affairs ofeither party hereto. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration laws. The arbitrator or arbitrators shall have the power to award to either party to the dispute such sums, costs, expenses, and attorney's fees as the arbitrator or arbitrators may deem proper. The award rendered by the arbitrator or arbitrators shall be appealable to a court of competent jurisdiction within thirty (30) days of notice of the arbitrators' award. Such appeal shall be prosecuted without delay and as rapidly as possible. Section 20.02 - Waiver of Trial Fly Jurg. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM OR APPEAL BROUGIIT BY EITIIER PARTY AGAINST TIlE OTHER ON ANY MATTER. Tenant agrees that any action brought in connection with this Lease may be maintained in any court of competent jurisdiction in the Commonwealth of Pennsylvania. Tenant hereby appoints Owner as agent for the purpose of accepting service ofany process, subject ooly to the condition that Owner promptly send Notice of such process to Tenant at the address of Tenant set forth in A-1 of the Basic Lease Provisions. In case suit shall be brought because of the breach of any agreement or obligation contained in this Lease on the part of Tenant or Owner to be kept or performed, and a breach shall be established, the prevailing party shall (to the extent permitted by law) be entitled to recover all expenses incurred therefor, including reasonable attorneys' fees. Owner's rights and remedies shall be cumulative and may be exercised and enforced concurrently. Any right or remedy conferred upon Owner under this Lease shall not be deemed to be exclusive of any other right or remedy Owner may have. All rights and liabilities herein given to or imposed upon the respective parties hereto shall, except as may be otherwise herein provided, extend to and bind the respective heirs, executors, administrators, successors and assigns of the said parties; and if there shall be more than one Tenant, they shall all be bound jointly and severally by the terms, covenants and agreements herein contained. This paragraph shall only become effective in the event that there is an appeal of an arbitrators award. AI~,TICLE XXI - OWNER'S IAABILITY Section 21.01. l.imitations on I Jahilily (A) Anything contained in this Lease to the contrary notwithstanding, Tenant agrees that Tenant shall look solely to the fee simple interests or leasehold estate of the Owner in the Shopping Center for the collectiou of any judgment (or other judicial process) requiring the payment of money by Owner in the event of any default or breach by Owner with respect to any of the terms and provisions of this Lease to be observed or performed by Owner, subject, however, to the prior rights of the holder of any mortgage covering the Shopping Center, and NO OTHER ASSETS OF OWNER SHALl. BE SUBJECT TO I.EVY. EXECUTION OR OTFIER JIIDICIAI. PROCESS FOR THE SATISFACTION OF TENANT'S CLAIM: AND OWNER SHALL NOT FIE I.[ABLE FOR ANY SUCH DEFAI JI.T OR BREACHdF. XCEPT TO THE EXTENT OF OWNER'S INTEREST IN THE SHOPPING CENTER. ,/"°/,~t,~ -~ ~ ~2 t_/- (B) Owner shall not be liable for any damage occasioned by failure of the Premises to be in repair, nor for any damage done or occasioned by or from plumbing, gas, water, sprinkler, steam or other pipes or sewerage, or the bursting, leaking or running of any tank, washstand, water closet or waste pipe in, above, upon or about the Premises or improvements constituting a part thereof, nor for any damage occasioned by water, snow or ice being upon or coming through the roof, skylights, trap door or otherwise. (C) In the event that in this Lease it is provided that the exercise of any right by Tenant or the performance of any obligations of Tenant shall be subject to the cousent or approval or Owner aod that the consent or approval of Owner shall not be unreasonably withheld or delayed, then in any case in which Owner shall withhold or delay its consent, Tenant hereby waives any and all rights it may have to recover (and Tenant shall not seek in any proceeding) any damages from Owner on account thereof; it being agreed that Tenant's sole remedy for Owner's withholding or delaying of consent shall be injunctive relief (without any right to damages). (D) Notwithstanding anything to the contrary contained in this Lease, if Owner shall elect to provide security service then (i) any security service that may be provided by Owner is intended solely for the protection and benefit of the Common Facilities and not for the protectiou or benefit or' the Leased Premises or any other premises; and (ii) Owner shall not be liable in any manner whatsoever to Tenant or to any third party by reason of Owner's act or failure to act in providing or maintaining security in the Shopping Center. Section 21.02. Owner's Obligations With Respect to Future Building Areas. Notwithstanding anything set out in this Lease to the contrary, it is understood and agreed that (i) Tenant will not cancel this Lease nor be entitled to claim any actual or constructive eviction because of a default of Owner either by act or omission under this Lease when such act or omission relates to any Future Building Area shown on Exhibit A, and Tenant will not abate rentals or other.vise credit or offset damages against rental under this Lease because of any act or omission of Owner under this Lease which relates to any Future Building Area shown on Exhibit g- , but shall not be construed as a waiver of any rights Tenant may have in personam against or as a waiver of any remedies by way of injunctive relief which Tenant may have against Owner (other than one who becomes such after the foreclosure of any first mortgage covering any part of the real property which is contained within the Shopping Center, or after the execution of a deed in lieu thereof); and (ii) the restrictions set out in this Lease, if any, to the extent the same relate to any Future Building Area shown on Exhibit A , and all obligations of Owner with respect to such restrictions shall absolutely and automatically terminate for all purposes from and after the date the holder of any first mortgage affecting the real property which is contained within the Shopping Center, forecloses its mortgage or obtains a deed in lieu thereof. For purposes of this Section, ao "Outtot" shall be considered the same as a Futnre Building Area. ARTICI~E XXII - HOLDING OVER Section 22.01. Holding Over. In the event Tenant remains in possession of the Leased Premises after the expiration of the tenancy created hereunder, and without the execution ora new lease, Tenant, at the option of Owner, shall be deemed to be occupying the Leased Premises as a tenant from month-to-month, at a rate equal to 125% of the Annual Minimum Rent for the last Lease Year of the term, subject to all the other conditions, provisions and obligations of this Lease insofar as the same are applicable to a month-to-month tenancy. Section 22.02. Time is of the Essence. Time is of the essence of each provision of this Lease. Tenant hereby waives notice to quit tile Premises at the expiration of the term of this Lease or any earlier termination, and this Lease shall constitute sufficieot notice to quit without any obligation upon Oyster to provide Tenant with coy additional notice thereof. ARTIC1,E XXIII - WAIVER; NOTICE; DEFINITIONS; MI$CEI~I.ANEOIIS. No delay or omission in the exercise of any right or remedy of Owner on any default by Tenant shall impair such a right or remed~v~or be construed as a waiver. No covenant, term or condition of this Lease shall be deeme~n waive"~nless such waiver be in writing signed by the party charged therewith. ! Section/2'3.02. Force IVlajeureJ In the event either party hereto shall be delayed or hindered in or prevented from the performance of any act required under this Lease by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental law or regulations, riots, insurrection, war or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under' the terms of this Lease, then performance of any such act shall be extended for a period equivalent to the period ofsuch delay. The provisions of this Section shall not (a) operate to excnse Tenant from prompt payment ofAnnnal Mioimum Rent or any other payment required by the terms of this Lease, and (b) be applicable to delays resulting from the inability of a party to obtain financing or to proceed with its obligations under this Lease because of a lack of funds. Section 23.03. Notices and Payments. (A) Whenever any notice, consent, approval or authorization ("Notice") is required or permitted under this Lease, the same shall be in writing and all oral notices, consents, approvals and authorizations shall be ofno effect. All Notices by Tenant to Owner shall be sent to Owner by registered or certified mail (return receipt requested), postage prepaid, or by a nationally recognized overnight courier smwice (Federal Express, AirBorne, UPS Next Day Air or similar) at the "Address of Owner" designated in Section A-I of the Basic Lease Provisions, or to such other address(es) as Owner may later designate in writing (including, without limitation, any notice which Tenant shall be required to give Owner's mortgagee pursuant to Section 12.04). Until Owner is notified otherwise by Tenant, all Notices by Owner to Tenant shall be deemed to have been duly given if sent by registered or certified mail (retum receipt requested), postage prepaid, or by a nationally recognized overnight courier service (Federal Express, AirBorne, UPS Next Day Air or similar) to Tenant at the "Address of Tenant" designated in Section A-I of the Basic Lease Provisions. In the case of notices sent by overnight courier, delivery shall be deemed effective one day after such notice is sent. Until otherwise notified in writing by Owner, Tenant shall pay all rent and other sums required to be paid by it under this Lease by check payable to the order of Owner and shall deliver the same, together with all sales reports required under Article III and all certificates of insurance required to be furnished by Tenant pursuant to Article X, to the address of Owner designated in Section A- l of the Basic Lease Provisions. (B) All Notices shall be effective upon being deposited in the United States mail in the manner prescribed in paragraph (A) of this Section. However, the time period in which a response to any such Notice must be given shall commence to run from the date of receipt by the addressee thereof as shown on the return receipt of the Notice. Rejection or other refusal to accept or the inability to deliver because of changed address of which no Notice was given, shall be deemed to be receipt of the Notice as of the date of such rejection, refusal or inability to deliver. Section 23.04. Definitions. (A) The term "calemlar year" shall mean a period of 12 consecutive full calendar months, commencing January I and ending December 3 I. (B) The term "Guarantor" as used in this Lease shall be deemed to mean any person, partnership, corporation or other entity which has undertaken, by separate instrument, endorsement co this Lease or in any other manner, to warrant, agree or guarantee that the obligations of Tenant, or any portion thereof, shall be performed by Tenant. (C) The ten'n "Gross l.easable Area" shall mean tile aggregate floor area within the exterior faces of tile exterior wails (except party walls as to which the center thereof, instead of the exterior faces thereof, shall be used). Changes in Gross Leasable Area occurring during any calendar month shall be effective on the first day of the next succeeding calendar month and, unless otherwise herein specified to the contrary, the total number of square feet of Gross Leasable Area in effect for any calendar year shall be the average of the number of square feet of Gross Leasable Area on the first day of each calendar month in such calendar year. (D) The term "including" as used in this Lease shall mean "including without limitation". (E) The term "~" shall mean a rate of interest, per annum, equal to the lessor of (i) the highest lawful rate of interest that may be charged Tenant under the laws of the State in which the Leased Premises is located or (ii) two percent (2%) in excess of the "Effective Rate" of Chase Manhattan Bank, N.A., New York, New York (or its successor) (the "Bank") initially determined as of the date any rent, additional rent or other payment under this Lease is due and for which interest at the Interest Rate is charged and thereafter adjusted daily; PROVIDED, HOWEVER, if the Bank should cease to exist as a viable commercial bank, then the "Effective Rate" of any commercial bank selected by Owner and having capital and surplus 30 ofat least $50,000,000.00 shall be used to determine the Interest Rate. The term "Effective Rate" shall mean tl1'e rate of interest announced by the Bank or other commercial bank selected by Owner as aforesaid, as the case may be, as its prime lending rate. The Effective Rate shall be as announced by the Bank notwithstanding that the Bank may actually charge other rates, and a written statement from the Bank or any national investment brokerage firm or national bank as to what the Effective Rate was on any given day shall be deemed conclusive. (F) The term "Leaae. Xe~" shall mean a period of twelve consecutive full calendar months. The first Lease Year shall begin on the date of commencement of the term if such date of commencement shall occur on the first day ora calendar month; if not, then on the first day of the calendar month next following such date of commencement. Each succeeding Lease Year shall commence upon the am~iversary date of the first Lease Year. (G) The term "Mortgage" shall include a deed of trust. The term "mortgagee" shall mean the holder of a mortgage and beneficiary under a deed of trust. (H) The tem~ "Tenant's Percentage Share" shall mean the Tenant's proportionate share based on the calculated percentage of Tenant's Gross Leasable Area as herein defined in relation to the total gross leasable area of the shopping center. (I) The word "Tenant" shall mean each and every person or party mentioned as Tenant herein, and if there shall be more than one Tenant, any Notice required or permitted by the terms of this Lease may be given by or to any one thereof and shall have the same force and effect as if given by or to all thereof. (J) The word "terns" shall mean the period from the date of the commencement of this Lease to the expiration or sooner termination thereof, including any extension thereof, all as herein provided. Section 23.05. Ivliscetlaneous. (A) Recording of Lease, Neither party shall record this Lease in its entirety. However, upon the request of either party, the other party shall join in the execution of a memorandum or so-called "short form" of this Lease for the purpose of recordation. (B) Obligations Snrviving Termination. All obligations of Tenant and Owner which by their nature involve performance, in any particular, after the end of the term, or which cannot be ascertained to have been fully performed until after the end of the term, shall survive the expiration or sooner termination of the term. (C) Governing l.aw and Jurisdiction. The laws of the Commonwealth of Pennsylvania shall govern the validity, performance and enforcement of this Lease. (D) No Accord And Satisfaction. No payment by Tenant or receipt by Owner of a lesser amount than the monthly rent and other charges, nor shall any endorsement or statement on any check or on any letter accompanying any check be deemed an accord and satisfaction. (E) Alteration~ And Amendments. Except as herein otherwise expressly provided, no subsequent alteration, amendment, change or addition to this Lease, nor any surrender of the term, shall be binding upon Owner or Tenant unless reduced to writing and signed by them. (F) No Partnership. Owner does not in any way or for any purpose become a partner of Tenant in the conduct of its [~usiness or othep, vise, nor a joint venturer or a member of a joint enterprise with Tenant. (G) Withholding Consent. Wherever in this Lease a party's consent or approval is required, sucb approval may be withheld arbitrarily unless otherwise herein specifically provided to the contrary. (H) Captions; Article Numbers. The captions, section numbers, article numbers and index appearing in this Lease in no way define, limit, construe or describe the scope or intent of such sections or articles of this Lease. The language in all parts of this Lease shall in all cases be construed as a whole according to its fair meaning, and not strictly for not against either Owner or Tenant, and should a court be called upon to interpret any provision hereof, no weight shall be given to, nor shall any construction or interpretation be influenced by, any presumption of preparation of a lease by Owner or by Tenant. (I) Guaranty, At the time of executing this Lease, Tenant shall provided to Owner a signed Guaranty of Lease including the signature of the spouse, if any, in form and substance as set forth in Exhibit D hereto. Each Guarantor shall provide Owner with an annual financial statement upon request. (J) Severability. In th~ event that one or more provisions of this Lease shall be found to be unenforceable at law or in equity, the remainder of the Lease shall not be affected and shall remain in full rome and effect. (K) Successors and Assigns. This Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representative, heirs, successors and assigns. (L) Tenant'~ Conporate Authority. If Tenant is a corporation, it shall, concurrently with the signing of this Lease, fumish to Owner certified copies of the resolutions of its Board of Directors (or of the executive committee of its Board of Directors) authorizing Tenant to enter into this Lease; and it shall furnish to Owner proof that Tenant is a duly organized corporation under the laws of the state of its incorporation, is qualified to do business in the Pennsylvania, is in good standing under the laws of Pennsylvania, and has the power and authority to enter into this Lease, and that all corporate action requisites to authorize Tenant to enter into this lease bas been duly taken. (M) Brokers. Except as set forth below, Tenant represents and warrants that it has not dealt with any broker in respect to this Lease, and agrees to defend, indemnify and save Owner harmless against all demands, claims and liabilities arising out of any dealings between Tenant and any other broker in respect to this Lease: Rothman, Schubert & Reed Realtors THIS I,EASE CONSTITUTES THE ENTIRE AGREEMENT THIS LEASE AND THE EXItlBITS AND RiDER, IF ANY, ATTACHED HERETO, IS THE COMPLETE AGREEMENT BETWEEN OWNER AND TENANT CONCERNING THE LEASED PREMISES AND THE SHOPPING CENTER. THERE ARE NO ORAL AGREEMENTS, UNDERSTANDINGS, PROMISES OR REPRESENTATIONS BETWEEN OWNER AND TENANT AFFECTING THIS LEASE. ALL PRIOR NEGOTIATIONS AND UNDERSTANDINGS, IF ANY, BETWEEN THE PARTIES HERETO WITH RESPECT TO THE LEASED PREMISES AND THE 32 SHOPPING CENTER SHALL BE OF NO FORCE OR EFFECT AND SHALL NOT BE USED TO INTERPRET THIS ~LEASE. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date first-above written. WITNESS: OWNER: Rothman, Schubert & Reed, a Pennsylvania General Partnership Samuel L. Reed, Attorney-in-Fact pursuant to Power of Attorney dated August 21, 1996, and recorded in Misc. Book 528, Page 480. ATTEST: TENANT: (SE. AL) 33 3NV9 B 3N¥9 3~lj .? RS&R SIIOPPING CENTER -OVERALL All tlmt certain tract of land situate in East Pcmuboro Towndfip, Cumberland County, Pennsylvania, more paxticulaxly bounded and described as follows: BEGINNING at a point along the northern right ofway line ofPcanaylvania Koute p~.~.. also known as Wertz'vlile Road and on rile line ofadjoiner between lots nos, I and 3 on the herelnai'ter mentioned Plan of Lot; thence, along said line of adjoincr by a curve Io the left with a radius of lO.O0' and an ara length of 15.71' to a point; thence, continuing along said line of adjoiner N 17°32'3Y'W, a distance of 185.58' to a point; thence, continuing along said line of adjuiner S 72"27'27" W, a distance of 241.55' to a point on the cente~line oran existing 20' sanitary sewer easement; thence, continuing along .said centerline the following courses and distances: N 27020'00'' W, a distance of 138.95' to a point; ' N 17°15'30' W, a distance of 263.28' to a point; N 4°10'00'' E, a distance of 130.24' to a point; N 4o20'30TM E, a distance of' 123.12' to a point; N 13°30'W, a distance of 259.57' to a point; N 00°51 'E, a distance of 348.14' to a point on the line of adjoiner between Lot No. 3 and lands now or formerly (n/f) of Jacob K. Remfinger; thence, along said Hne of adjolner N 80°59'42'' E, a distance of 102.70' to a Ix)hit on the line of ad joiner between Lot No. 3 and lands n/f of Robert Bretz; thence, along said line of adjoiner a~ld along lands rdfofMafgaret and Jacob Uldck S 22024'47'' E, a distance of 200.31' to an iron pin; thence, N 81 °05'07" E, a distance of 298.94' to a point; thence, S 22051'00'' E, a distance of~217.05' to a point; thence,, along said lands n/f of Conservative Bartist Church S 81°24'00'' W, a distance of ] 25.44' to an iron pin; thence, along said tine ofadjoiner S 22°51'08" E, a distance of 349.95' to an iron pin; thence, along said line of adjoiner lq 81"24' E a distance of' 125.44' to an iron pin on the we. stem end of'Linden Street; thence, along said western end of Linden Street S 16°15'43'' E, a diatanc,~ of 48.34' to an iron phi on lands n/fofHelen B. Heisey; thence, along said lands S 22°53'35'' E a distance of 152.38' to an iron pin at lands ldfof Donald E. Shutt; thence, along said lands n/for Shutt and lands n/fofRobext Bretz'S 73°4~I'35".W a ' ' : ' distance of 179.42' to an iron pin; . ..: "- thence, along said lands of Bretz: S17°35'35'' E a distance of 182'03' to a' point On tits ' northern l~ne of'Eot No. 2; " ' · ". thence, S 72o27'2-` '¥ a'dista~l~o of 199 80' to a .... ., ' : thence, S 17°32'35 E a diataac~ ot'208.00' to a point; ".':' ...... . ~ .... ' thence, by a curve to the lelt'.h~. V~ a radius of 10' for an ere distance un tho northern line ofPenn~[vama R, oute 944, known aa Wem&qlM Rcmd. ', ,... ': , :'.t ": "" thence, S 72027'27" W a dist,ance of 79.04' tea point the P~i~,~.,~Q~ COnt~nin8 579,784 sq. t'L ' (13 31 .~¢res) '.- .' BEING Lot No. 3 WERTZVILLE ROAD R/W CONVEYANCE All that certain tract of land situate in East Pennsboro Tovmsl~ip, Cumberland County, Petmsylvania, more particularly bounded and described as follows: BEGINNING at a point along the existing northern right ofway line of Permsylvania Route 944, also known as Weazville Road, said point being [ocateg at tho southeastern corner &lands now or formerly of Erie Shore Enterprises, Ino. thanc~ along said lands by a curve to the lell having a radius of 10.00 and an arc length of 15.71' lo a point; thanc~, by same N 17032'33" W a distance of 5.14' to a point on the required northern right-of- way line of Wertzxdlle Road; thence, by said right, of-way line N 72°26'17" lq. a diatanco of 59.04' to a point at lands now or formerly of Uni-Merts, Inc.; thence, along lands of Unl- Marts, Inc. S 17°32'3Y' E a distance of 5.16' to a point; thence., by same by a curvo to tho left Imving a radius of 10.00, and an arc length of 15.71' to a point on the northers right- of-way line o£Wertzville Ikoad;'thence, by said fight-of-way llne S 72°27'27'' W a distance of 79.04' to a point, the place of BEGINNING. Containing: 938 sq. ft. (0.02 acres) CONVEYANCE TO RS &R All that cea. sin tract of/and situate in East Pennsboro Townsblp, Cumberland County; Pennsylvania, more particularly bounded and described as follows: BEGINNING at a point on the eastern fight, of-way of Salt Road R~alilllunsnt, said IX}Eat being on tho centerline oran existing 20' sanitary s~wer ea"nm~ent;' thence, 'along ~aid sewer centerline N 17°15'30" W a distanc,~ of 70.96' to a point; thence,,.by samo N 04°I0'00" E a distance et' 130.24' to a point; thence, along lands now or formerly of We.st Shore First Assembly et'God S 67°54'41'' W a distance of ! 16.45' to a polnt on tho east~mright.~ -~at~aga:~ll~td Realimunent; thence, along said right-of~way line S 22°05' 19" E a dlstanc~ of' 113.65' to a point; thencq by same N 67°$4'41" E a distanc, o of 5.00' to a point; thence, by sant~ S 22°05'19" E a distanc~ of ! 13.65' to a point; thence, by same N 67°54'41" E a distance of 47.86' to a point, the plac~ of BEGINNINO. Containing: 13,618 sq. ft. (0.31 acres) EXIIIIIIIAI O~VN EIUS WORK Executed with Lease dated /'d~- g~L ~'~, , 1998, between William P. Rothman, Charles F. Schubert & Samuel L. Reed, Co-Partners, t/d/b/a Rothman, Schubert & Reed, a Pennsylvania General Partnership, as Owner and Chon$ $o , as Tenant. Ov, mer agrees, at its expense, to deliver the Leased Premises to Tenant with the following work set fortb below. Owner has not agreed to perform any other work in the premises, and all other work necessary to complete the Leased Premises shall be done at Tenant's sole cost and expense. Owner shall provided Tenant with a "pare vanilla box" which shall include the following work/construction to the Leased Premises: 1. Four (4) ',vails, V2" dry-walled and primed. 2x4 grid ceiling with fluorescent lighting through out. lIVAC--heated and cooled with roof top units, gas fired heat, and electric cooling. Cooling based on one (l) ton per 350 square feet.. 4. One (1) batln'oom (unisex) witb slandard plumbing in compliance with ADA. One (1) hot water heater for bathroom only. 200 amp electrical service with miscellaneons receptacles through out as reqnired by Code. 7. Concrete flooring, 4" thick, 3000 psi. Glass fi'oat, all windows mid maintenance doors to be aluminun'~ as manufactured by Kawaneer or equivalent. 9. Water, sewer and gas to be supplied at rear ol'property. Tenant shall he responsible for bnild-out, floor covering, additional plnmbing and additional hot water heater to service the Leased Premises and such other work necessary to complete the Leased Premises all at Tenant's sole cost and expense and not without Owner's approval. ,( 17. Prenrises. Not conduct, pemrit or suffer any public or private auction sale to be conducted on or from the Leased 18. Not solicit business in the common areas of the Shopping center or distribute hand bills or other advertising materials in the connnon areas, and if this provision is violated Teuant shall pay Owoer the cost of collecting same from the common areas for trash disposal. 19. Automobiles belonging to Tenant, its employees and invitees, shall be parked only in the areas that may be designated by Owner, subject to the provisions of this Lease. 20. Doors in the Leased Prenfises shall not be covered or obstructed by Tenant. 21. Water closets and otber plumbing shall be used for no other purpose than those for which they were intended aod no sweepings, rubbish, rags, or improper articles and materials shall be thrown therein. It is recognized by the parties that chemicals, paints and thinners are especially injurious to the functioning of the property's sewage disposal system and, without limitation, shall not be disposed of in sncb sewage system. 22. No signs, advertisements or notices of any kind shall be painted or affixed to any part of the outside of the Leased Premises witbout the prior written permission of Owner. 23. Premises. No person of disorderly character will be allowed to frequent or remain on or about tbe Leased 24. No nuisance, public or private, sball be created or permitted in the demised premises and the Leased Premises shall be conducted so as that no annoyance is caused to Owner, Owners's employees or other tenauts of tile Owner. It is recoguized that the Leased Prenfises are part ora Shopping Center iu which numerous tenants are located and that absolute supervision of the use of the Leased Premises is necessary in order to officially maintain and operate an entire Shopping Center, and the parties therefore agree that the Owner shall have the exclusive and sole right of determining as to what constitutes a nuisauces and that its determination shall be binding and absolute. 25. Upon temfination of the Lease, doors and windows of the building shall be left securely fastened and the keys to the leased premises shall be delivered to the Owner. 26. Tenant's fire fighting and prevention apparatus shall be adequate and sufficient and shall be kept in proper working condition and accessible at all times so as to conform to all applicable laws, ordinances and regulations. IN WITNESS WHEREOF, the parties set forth tbeirs hands this ~ day of.~ . , 1998. WITNESS: ATTEST: OWNER: Rothman, Schubert & Reed, a Pennsylvania General Partnership Samuel L. Reed, Attorney-in-Fact pursuant to Power of Attomey dated August 21, 1996, and recorded in Misc. Book 528, Page 480. TENANT: (SEAL) .GUARANTY OF LEASE In consideration of the making of the above Lease dated ~'~" q , 1998, by the Tenant with the Owner at the request of the undersigned, and in reliance of the Guaranty, the undersigned hereby unconditionally and irrevocably guarantees the payment of the rent to be paid by the Tenant and the performance by the Tenant of all the terms, conditions, covenants and agreements of the Lease and its Exhibits, and the undersigned promises to pay all of the Owner's expenses, including reasonable attorney's fees, incurred by the Owner in enforcing this Guaranty. The Owner's consent to any assignment or assignments, and successive assignments by the Tenant and Tenant's assigns, of this Lease, made either with or without notice to the undersigned, or a changed or different use of the Leased Premises, or Owner's forbearance delay, extensions of time or any other reason whether similar to or different from the foregoing, shall in no way or manner release the undersigned from liability as Guarantor. Where the undersigned include more than one party, the obligation of each such party hereunder will be joint and several. It will not be necessary for Owner to proceed first against Tenant in invoking any of Owner's lease remedies before proceeding to enforce this Guaranty of Lease. WITNESS the hand and seal of the undersigned at the date of the above Lease. WITNESS: \ GUARANI.OR(S): CHONG SO 717-975-5598 4414 Royal Oak Rd Camp Hill, Pa 17011-4144 PNCBANK 524 Centzal ~]L 040 ~2 6 5 0 CHONG$OOK $O 3~3 64 SUPERIOR CLEANERS 838 US ROUTE 15 NORTH 3619512163 --c DILLSBURG, PA 17019 DATE /'~--(]~' [ ~{~' / EXHIBIT "B" REAGER & ADLER, PC A'i-rORNEYS AND COUNSELORS AT LAW 2331 MARKET STREET CAMP HILL, PENNSYLVANIA 17011-4642 717-763-1383 TELEFAX 717-730-7366 WEBSlTE: ReagerAdlerPC.com THEODORE a. ADLER + DAVID W. REAGER LINUS E. FENICLE DEBRA DENISON CANTOR THOMAS O. WILLIAMS SUSAN H. CONFAIR PETER L. LEONE + Certified Civil Trial Specl~ist Writer's E-Mail Address: sconfair~epix.net September 18,2001 via Certified and First Class Mail Mr. Chong So Superior/Enola Cleaners 322 East Penn Drive Enola, PA 17025 ¥la Certified and First Claas Mail Mr. Chong So 4414 Royal Oak Rd. Camp Hill, PA 17011 RE: NOTICE OF DEFAULT Pennsboro Commons Shopping Center Dear Mr. So: This finn represents your Landlord, Rothman, Schubert & Reed. It has been brought to our attention that you are in default under the terms of your Lease Agreement as there are outstanding rental payments, late charges and sewer charge owed to your Landlord as follows: I. Rent for August, 2001 ...................... $300.00 2. Late charge for August 2001 .............. 100.00 3. Unpaid Sewer charge ............................ 54.45 4. Rent for September, 2001 ................ 1,735.00 5. Late charge for September, 2001 ........ 100.00 6. Less: Payment 9/5/01, check #564....<835.00> TOTAL OWED: ............................. $1,545,45 Please make the payment of the sum of $1,454.45 to Rothman, Schubert & Reed within seven (7) days from your receipt of this letter. This is your notice that you are in default under the terms of the Lease Agreement. Please contact me if you have any questions regarding these matter. Very tru~outs, Susan H. Confair SHC/crt cc: Samuel L. Reed, Rothman, Schubert & Reed VERIFICATION I, Charles F. Schubert, state that I am a partner of Rothman, Schubert & Reed, a Pennsylvania General Partnership and I am authorized to make this verification. I do hereby verify that the facts set forth in the foregoing document are tree and correct to the best of my knowledge, information, and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. §4904, relating to unswom falsification to authorities. DATED: //- 6-F_Pl Char~ F. Schul~eh2t~ - ROTHMAN, SCHUBERT & REED, a Pennsylvania General Partnership, Plaintiff CHONG SO t/dgo/a SUPERIOR CLEANERS, Defendant 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: EJECTMENT BY CONFESSION To: Chong So t/d/b/a Superior Cleaners, Defendant(s) You are hereby notified that on November ~ , 2001, judgment by confession for possession was entered against you in the above-captioned case. DATE: 11' Prothonotary/,~ ~ YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 I hereby certify that the following is the address of the defendants stated in the certificate of residence: Chong So t/dgo/a Superior Cleaners 322 East Penn Drive Enola, PA 17025 and Chong So 4414 Royal Oak Road Camp Hill, PA 17011-4414 A Chong So t/dgo/a Superior Cleaners, Demandado(s) Ad~laint2 ~ff~~ ROTHMAN, SCHUBERT & REED, a Pennsylvania General Parmership, Plaintiff CHONG SO t/d/b/a SUPERIOR CLEANERS, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: EJECTMENT BY CONFESSION PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT To the Prothonotary: Issue writ of possession upon the judgment in ejectment entered by confession in the above matter. CERTIFICATION I certify that: (1) (2) This Praecipe is based upon a judgment entered by confession, and Notice pursuant to Rule 2973.3 will be served with the writ of possession. Date: November 6, 2001 Respectfully submitted, Thol~as ~. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011-4642 Telephone: (717) 763-1383 Attorneys for Plaintiff WRIT OF POSSESSION (Ejectment Proceedings PRCP 3160 - 3165 etc.) Rothnan, Schubert & Reed, a Pennsylvania General Partnership VS. Chong So t/d/b/a Superior Cleanp~ No. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Costs 01-6338 Civil Att'y. $ $29.50 Pl'ff (s) $ _ Prothy. $ Sl.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Ctanberland County, Pennsylvania (l) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: Rothnan, Schubert & Reed, a Pennsylvania General Partnership Plaintiff (s) being: (Premises as follows): (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defen- dant (s) and sell his/her (or their) interest therein. Date November 7, 2001 (SEAL) Prothonotm3', Common Pleas Court of Cumberland County, Pennsylvania By virtue of this writ, on the 29 th day of November 2001 I caused the within named have possession of the premises described with the appurtenances, and WRIT OF POSSESSION RETURNED STAYED, NO ACTION TAKEN AS PER ATTY 11/28/01. Sheriff's Costs: Advance Costs: 1~.00~ , to Docketing $ Frothonotary Surcharge Poundage 18.00 Swort~=~ subscribed to before me this day of r / Prothonotary Sheriff's Costs: 39.78 Refunded to Arty 11/29/01 ROTHMAN, SCHUBERT & REED, a Pennsylvania General Partnership, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CHONG SO t/d/b/a SUPERIOR CLEANERS, Defendant : No.: 01-6338 Civil : EJECTMENT BY CONFESSION PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned lawsuit as settled and discontinued with prejudice and judgmem satisfied. Date: January 25, 2002 Respectfully sub~teCe.-3~~ 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 25th day of January, 2002, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. mail, first class, postage prepaid and addressed as follows: Thomas D. Gould, Esquire 2 E. Main Street Shiremanstown, PA 17011 THOM~O WI'L--L~AIV~, ESQUIRE