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Home My WebLink About04-0625PENN'S WOOD PHYSICAL THERAPY, LIMITED PARTNERSHIP, a Texas limited partnership 419 Stonehedge Drive, Suite #3 Carlisle, PA 17013 Plaintiff, WALNUT BOTTOM PHASE II, a Pennsylvania general partnership 937 Nixon Drive Mechanicsburg, PA 17055 And CARLISLE HMA, 1NC., d/b/a CARLISLE REGIONAL MEDICAL CENTER, 246 Parker Street Carlisle, PA 17013 Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 2004- C1VIL TERM NOTICE NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR TO DEFEND AVISO Le han demandado a usted en Ia corte. Si nsted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita 0 en persona 0 con un abogado y entregar a la corte en forma escrita sus defensas o sns objeciones a Ias demandas en contra de su persona. Sea avisado que si nsted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perer dinero o sus propiedades u otros derechos importantes para nsted. 900200.00001/21239268v4 CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCIONE SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 900200.00001/21239268v4 PENN'S WOOD PHYSICAL THERAPY, LIMITED PARTNERSHIP, a Texas limited partnership 419 Stonehedge Drive, Suite #3 Carlisle, PA 17013 Plaintiff, WALNUT BOTTOM PHASE II, a Pennsylvania general partnership 937 Nixon Drive Mechanicsburg, PA 17055 And CARLISLE HMA, 1NC., d/b/a CARLISLE REGIONAL MEDICAL CENTER, 246 Parker Street Carlisle, PA 17013 Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 2004- L, ,~ ~ ~-~ -7~-t~ CIVIL TERM COMPLAINT Plaintiff Penn's Wood Physical Therapy, Limited Partnership, a Texas limited parmership, with an address at 419 Stonehedge Drive, Suite #3, Carlisle, Pennsylvania 17013, by way of Complaint against Defendants Walnut Bottom Phase II and Carlisle Regional Medical Center, hereby alleges as follows: 900200,00001/21239268v4 PARTIES 1. Plaintiff Penn's Wood Physical Therapy, Limited Partnership ("Penn's Wood"), is a Texas limited partnership with an address at 419 Stonehedge Drive, Suite #3, Carlisle, Pennsylvania 17013. 2. Defendant Walnut Bottom Phase II ("Walnut Bottom") is a Pennsylvania general partnership with an address at 937 Nixon Drive, Mechanicsburg, Pennsylvania 17055. 3. Defendant Carlisle HMA, Inc., d/b/a Carlisle Regional Medical Center ("CRMC") is a Pennsylvania corporation operating as a hospital with an address at 246 Parker Street, Carlisle, Pennsylvania 17013. services. 5. GENERAL ALLEGATIONS PlaintiffPenn's Wood is in the business of providing outpatient physical therapy Defendant Walnut Bottom is the owner of a professional business park known as Walnut Bottom Business Center Phase II located at 419 Stonehedge Drive, Carlisle, Pennsylvania 17013 ("Professional Center"). 6. Plaintiff Penn's Wood, as tenant, and Defendant Walnut Bottom, as landlord, entered into a written lease agreement ("Penn's Wood Lease") dated November 14, 2001 for an office suite at the Professional Center. A true and correct copy of the Penn's Wood Lease is attached hereto as Exhibit A and by reference incorporated herein and made a part hereof. 7. Pursuant to Sections 1.14 and 6.1 of the Penn's Wood Lease, the premises leased by PlaintiffPenn's Wood can only be used as an "[o]utpatient physical therapy clinic, associated general administrative office and any related and ancillary use related to the foregoing." 900200.00001/21239268v4 8. Section 6.2 of the Penn's Wood Lease contains the following "exclusive use" provision for the benefit of Plaintiff Penn's Wood: Exclusive Use. Landlord agrees that Landlord shall not lease any space in the Professional Center (other than the Demised Premises) for use as an outpatient physical therapy or chiropractic clinic or provider, or permit any tenant (other than Tenant) in the Professional Center to use its premises for any of such uses. Section 6.2 of the Penn's Wood Lease is sometimes hereinafter referred to as the "Exclusive Use Provision." 9. Upon information and belief, Defendant CRMC also leases a portion of the Professional Center pursuant to a lease agreement with Defendant Walnut Bottom ("CRMC Lease"). 10. Despite requests made upon it, Defendant CRMC has refused to produce a copy of the CRMC Lease to Plaintiff Penn's Wood. Accordingly, Plaintiff Penn's Wood does not have a copy of the CRMC Lease to attach to the Complaint. I 1. At the time the Penn's Wood Lease was executed between PlaintiffPenn's Wood and Defendant Walnut Bottom, Defendant CRMC was not using its leased premises at the Professional Center to provide either outpatient physical therapy services or a chiropractic clinic. 12. Upon discovery of Defendant CRMC's intent to provide outpatient physical therapy services on its leased premises at the Professional Center, Plaintiff Penn's Wood provided Defendant Walnut Bottom with written notice of this breach of the Exclusive Use Provision in the Penn's Wood Lease by letter dated November 6, 2003. A true and correct copy of this letter is attached hereto as Exhibit B and by reference incorporated herein and made a part hereof. 900200.00001/21239268v4 13. Recently, in or about late January 2004, Defendant CRMC began to use its leased premises at the Professional Center to provide outpatient physical therapy services in competition with Plaintiff Penn's Wood and continues to do so. 14. Defendant Walnut Bottom has failed to cure its breach of the Exclusive Use Provision in the Penn's Wood Lease. COUNT I BREACH OF LEASE Penn's Wood v. Walnut Bottom 15. PlaintiffPenn's Wood incorporates the preceding paragraphs 1 through 14 as if fully set forth herein. 16. The Penn's Wood Lease is a valid lease between Plaintiff Penn's Wood and Defendant Walnnt Bottom. 17. Upon information and belief, Defendant Walnut Bottom has materially breached the Exclusive Use Provision in the Penn's Wood Lease by leasing space to Defendant CRMC for use in providing outpatient physical therapy services. 18. Defendant Walnut Bottom has materially breached the Exclusive Use Provision in the Perm's Wood Lease by permitting Defendant CRMC to use its premises at the Professional Center to provide outpatient physical therapy services. 19. Plaintiff Penn's Wood has sustained, and will continue to sustain, damages as a consequence of Defendant Walnut Bottom's breach of the Exclusive Use Provision in the Penn's Wood Lease, including, but not limited to, lost revenues and profits and interference with its quiet enjoyment, as a result of Defendant CRMC's use of the premises at the Professional Center to provide competing outpatient physical therapy services. 20. If PlaintiffPenn's Wood elects to terminate the Penn's Wood Lease as a result of Defendant Walnut Bottom's material breach of the Exclusive Use Provision, PlaintiffPenn's 900200.00001/21239268v4 Wood will sustain damages, including, but not limited to, lost revenues and profits, the value of abandoned improvements, costs incurred in moving to and fitting out a new location, and any increased rents and additional costs occasioned by such a move. WHEREFORE, Plaintiff Penn's Wood demands judgment against Defendant Walnut Bottom for lost revenues and profits, attorneys' fees, costs, interest, and such other relief that the Court deems equitable and just; or, alternatively, if Plaintiff Penn's Wood elects to terminate the Penn's Wood Lease, then Plaintiff demands lost revenues and profits, the value of abandoned improvements, costs incurred in moving to and fitting out a new location, any increased rents and additional costs occasioned by such a move, attorneys' fees, costs, interest, and such other relief that the Court deems equitable and just. COUNT II INTENTIONAL OR FRAUDULENT MISREPRESENTATION Penn's Wood v. Walnut Bottom 21. Plaintiff incorporates the preceding paragraphs 1 through 20 as if fully set forth herein. 22. Defendant Walnut Bottom knew that the Exclusive Use Provision was an essential and material term to the lease transaction with PlaintiffPerm's Wood. 23. Defendant Walnut Bottom's representation in the Exclusive Use Provision that Plaintiff Penn's Wood's "use" would be "exclusive" was an intentional and material misrepresentation as Defendant Walnut Bottom knew, by reason of having executed the CRMC Lease, was false. 24. In addition, Defendant Walnut Bottom's failure to disclose the allowable extent of Defendant CRMC's "use" of the premises at the Professional Center was a material and intentional omission. 900200.00001/21239268v4 25. Defendant Walnut Bottom intended PlaintiffPenn's Wood to rely upon Defendant Walnut Bottom's misrepresentation and silence to induce Plaintiff Penn's Wood's execution of the Penn's Wood Lease. 26. Plaintiff Penn's Wood justifiably relied upon Defendant Walnut Bottom's misrepresentation and silence, and, as a result, executed the Penn's Wood Lease. 27. As a direct and proximate result of Plaintiff Penn's Wood's reliance upon Defendant Walnut Bottom's intentional misrepresentation and silence, Plaintiff Penn's Wood has sustained, and will continue to sustain, damages, including, but not limited to, lost revenues and profits and interference with its quiet enjoyment of the lease premises at the Professional Center. 28. If Plaintiff Penn's Wood elects to terminate the Penn's Wood Lease, Plaintiff Penn's Wood will sustain damages as a direct and proximate consequence of Defendant Walnut Bottom's intentional misrepresentation and silence, including, but not limited to, lost revenues and profits, the value of abandoned improvements, costs incurred in moving to and fitting out a new location, and any increased rents and additional costs occasioned by such a move. WHEREFORE, PlaintiffPenn's Wood demands judgment against Defendant Walnut Bottom for lost revenues and profits, attorneys' fees, costs, interest, and such other relief that the Court deems equitable and just; or, alternatively, if Plaintiff Penn's Wood elects to terminate the Penn's Wood Lease, then Plaintiff demands lost revenues and profits, the value of abandoned improvements, costs incurred in moving to and fitting out a new location, any increased rents and additional costs occasioned by such a move, attorneys' fees, costs, interest, and such other relief that the Court deems equitable and just. 900200.00001/21239268v4 29. herein. 30. COUNT III NEGLIGENT MISREPRESENTATION Penn's Wood v. Wainut Bottom Plaintiff incorporates the preceding paragraphs 1 through 28as if fully set forth Defendant Walnut Bottom knew that the Exclusive Use Provision was an essential and material term to the lease transaction with PlaintiffPenn's Wood. 31. Defendant Walnut Bottom's representation in the Exclusive Use Provision that Plaintiff Penn's Wood's "use" would be "exclusive" was a negligent and material misrepresentation that Defendant Walnut Bottom, by reason of having executed the CRMC Lease, knew or should have known was false. 32. In addition, Defendant Walnut Bottom's failure to disclose the allowable extent of Defendant CRMC's "use" of the premises at the Professional Center was a negligent and material omission. 33. Defendant Walnut Bottom intended Plaintiff Penn's Wood to rely upon its misrepresentation and silence to induce its execution of the Penn's Wood Lease. 34. Plaintiff Penn's Wood justifiably relied upon Defendant Walnut Bottom's misrepresentation and silence, and, as a result, executed the Penn's Wood Lease. 35. As a direct and proximate result of Plaintiff Penn's Wood's reliance upon Defendant Walnut Bottom's misrepresentation and silence, PlaintiffPenn's Wood sustained, and will continue to sustain, damages, including, but not limited to, lost revenues and profits and interference with its quiet enjoyment of the lease premises at the Professional Center. 36. If Plaintiff Penn's Wood elects to terminate the Penn's Wood Lease, Plaintiff Penn's Wood will sustain damages as a direct and proximate consequence of Defendant Walnut 900200.00001/21239268v4 Bottom's negligent misrepresentation and silence, including, but not limited to, lost revenues and profits, the value of abandoned improvements, costs incurred in moving to and fitting out a new location, and any increased rents and additional costs occasioned by such a move. WltEREFORE, Plaintiff Penn's Wood demands judgment against Defendant Walnut Bottom for lost revenues and profits, attorneys' fees, costs, interest, and such other relief that the Court deems equitable and just; or, alternatively, if Plaintiff Penn's Wood elects to terminate the Penn's Wood Lease, then Plaintiff Penn's Wood demands lost revenues and profits, the value of abandoned improvements, costs incurred in moving to and fitting out a new location, any increased rents and additional costs occasioned by such a move, attorneys' fees, costs, interest, and such other relief that the Court deems equitable and just. COUNT IV INJUNCTIVE RELIEF Penn's Wood v. CR3~IC 37. PlaintiffPenn's Wood incorporates the preceding paragraphs 1 through 36 as if fully set forth herein. 38. Upon information and belief, Defendant CRMC has no lawful right to use the premises at the Professional Center to provide outpatient physical therapy services. 39. Prior to it recent use of the premises in providing outpatient physical therapy services, Defendant CMRC had knowledge that Plaintiff Penn's Wood had the right to the exclusive use of the premises at the Professional Center in providing outpatient physical therapy services. 40. Defendant CMRC had a duty to inquire and determine the propriety of its use of the premises in providing outpatient physical therapy services. 900200,00001/21239268v4 41. Defendant CRMC's provision of competing physical therapy services at the Professional Center has, and continues to, deny Plaintiff Penn's Wood of the exclusive use and quiet enjoyment of its leasehold for which it has no adequate remedy at law. 42. PlaintiffPenn's Wood's use of the premises at the Professional Center is limited to providing outpatient physical therapy services. Defendant CRMC, meanwhile, has and can use the premises for provision of services other than outpatient physical therapy services. Accordingly, the harm that PlaintiffPenn's Wood is incurring without injunctive relief is greater than that which Defendant CRMC would incur if preliminary injunctive relief were awarded. 43. Injunctive relief will restore the status quo as it existed immediately prior to Defendant CRMC's recent and improper interference with PlaintiffPenn's Wood's exclusive use and quiet enjoyment of the premises at the Professional Center. WHEREFORE, Plaintiff Penn's Wood demands judgment against Defendant CRMC enjoining it from providing outpatient physical therapy services at the Professional Center during the term of the Penn's Wood Lease, lost revenues and profits, attorneys' fees, costs, interest, and such other relief that the Court deems equitable and just. 900200.00001/21239268v4 JURY DEMAND Plaintiff demands a trial by jury of all issues so triable. Dated: February 11, 2004 By: HANFT & KNIGHT, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717) 249-5373 Edward I. Swichar, Esquire BLANK ROME, LLP Attorney Identification No. 15175 One Logan Square Philadelphia, PA 19103-6998 (215) 569-5500 Attorneys for Plaintiff 900200.00001/21239268v4 VERIFICATION I, Ronal d D. Greenwo~m a~l authorized representative of PlaintiffPenn's Wood Physical Therapy, Limited Partnership, a Texas limited partnership, and hereby verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belie£ This Verification is made subject to the penalties for unswora falsification to authorities contained in 18 Pa.C.S.A. § 4904. Dated: February 10,2004 ~~'~ 900200.00001/2123926gv4 Exhibit "A" 1.I Lmdiord: ' I.,tndlm'd's Add~m L7 'Demised ~ C~FA 170D 1,1o 1,11. l~nt or Itenteh 1,14 ~'m'mlt~d Ye~ snd ,~. on ~le l~t thy of l" -3d ldo~ 4.,200 2 4 ' 10 ' ~ 1~ DIgF&tU, T 16,3 1:5 Exhibit "B" & WF.$THE?MER, P.C. '' November 6, g003. Mr. Harold ~/o~ub~'ger ' ' , - CM.KP, R #?001 2510 0005 74f i 70/4 Walnut Bottom ~a IJ ~ ~r~ ~ ~37 Nix~ Mm&ameba. PA 1705f ~so ~ Novemb~ 14,'2001 b~ Y~'s Woo'fl ?~cal ~a~y, Limi~d P~er~hip~ ~s law ~ ~es,~at~ P~'s Wood Pl~st~ ~e~y,' ~d Parmership (~he "Taunt"). Tenant 1¢~ app~xj~tely 4,~0 aquae faet~,of s~ ~ the W~n~t BoSom BL~i~esS C~n~r Pha~e Il It hu b~en brought ~o ~ el~t's auction tMt a ho~i~[ ~o~iug out-pallem th~y ~ ~ ,~l~ate flaoee ~vie~'~m ~e ~adl~; ~,ilai~ to t~e h0~l'a existfn~ suaee at ~he Pro~ssioual ' Prof~s~onal C~r (at&er t~ ~e Demi~ P~ml~) ~r us~ ~ &n outf~i~ physical ~.~ or a chJ~pm~e ~l~ ~ ~r~i~, or p~ntt ~y I~ant Our cli~T ~ y0~ W aoi~ly with ym~ ~ obli~a~on~ undo' ~e Lease. A~y violatlou of ~z Exclusive U~ prov[~ml of ~e L~ wonld ~ ~ma~'to otir cl{~t and flml~ ~n~ will ~ars;~ Plea~ oo~aCt me u po~ r~elpt of ~ ]et~ to di~os{ your iu~n~d actiom ~gardi~g enforcement of me gxc.~tw Use pm~a~m wi~ yot~ o~ ~n~t. Wu ~g, you ~ eomm~u~ your ;ompliau~' wi~ ubiiga6q~ ~m~tuly. 'Mr, Milieu McGimy . 'V~' ~:uly yours, SHERIFF'S RETURN - REGULAR CASE NO: 2004-00625 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PENN'S WOOD PHYSICAL THERAPY VS WALNUT BOTTOM PHASE II ET AL ROBERT BITNER , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE was served upon WALNUT BOTTOM PHASE II the Sheriff or Deputy Sheriff of who being duly sworn according to law, 1045:00 HOURS, on the 19th day of February , 2004 by handing to IN CHARGE together with DEFENDAlqT , at at 937 NIXON DRIVE MECHANICSBURG, PA 17055 SHUN HARLBOLD, SUPERVISOR, ADULT a true and attested copy of COMPLJ~INT & NOTICE and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18 00 6 21 00 10 00 00 34 21 Sworn and Subscribed to before me this ~ day of A.D. So Answers: 02/20/2004 HANFT & KNIGHT / Deputy Sheriff SHERIFF'S RETURN - CASE NO: 2004-00625 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PENN'S WOOD PHYSICAL THERAPY VS WALNUT BOTTOM PHASE II ET AL REGULAR ROBERT BITNER , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE was served upon CARLISLE HMA INC D/B/A CARLISLE REGIONAL MEDICAL CTR the DEFENDANT , at 1542:00 HOURS, at 246 PARKER STREET CARLISLE, PA 17013 ANNE LAPORT, ADULT IN CHARGE a true Sheriff or Deputy Sheriff of who being duly sworn according to law, on the 19th day of February , 2004 by handing to together with and attested copy of COMPLAINT & NOTICE and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 3.45 Affidavit o00 Surcharge 10.00 .00 19.45 Sworn and Subscribed to before me this ~l~~ day of ~r~thonotary 't So Answers: R. Thomas Kline 02/20/2004 HANFT & KNIGHT ~eputy Sheriff PENN'S WOOD PHYSICAL THERAPY, LIMITED PARTNERSHIP, Plaintiff WALNUT BOTTOM PHASE II, And CARLISLE HMA, INC., d/b/a CARLISLE REGIONAL MEDICAL CENTER, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, pENNSYLVANIA No. 2004-625 CIVIL JURY TRIAL DEMANDED DEMAND FOR JURY TRIAL To the Prothonotary: Pursuant to Pa. R.C.P. 1007.1 (a), the Plaintiffin the above captioned matter hereby exercises its right to demand a jury trial. HANFT & KNIGHT, P.C. Attorney I.D. No. 57976 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 (717) 249-5373 Attorney for Plaintiff Date: March 19, 2004 \05_A\LIAB\TJM\LLPO\15295%JMF~15000~50000 PENN'S WOOD PHYSICAL THERAPY, LIMITED pARTNERSHIP, Plaintiff WALNUT BOTTOM PHASE II, and CARLISLE HMA, INC., dib/a CARLISLE REGIONAL MEDICAL CENTER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLANqD COUNTY, pENNSYLVANIA NO. 2004-625 CIVIL CIVIL AC, TION - LAW ENTRY OF APPEARANC)_.E TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned as counsel on behalf of the Defendant, Carlisle HMA, Inc., d/b/a Carlisle Regional Medical Center, only, with respect to the above- referenced matter. DATE: '~tO~ I~, ~a(O4 BY: Respect!tully submitted, MARSItALL, DENNEHEY, WARNER, COLEMAN a C_~C~IN I.D. No. 52918 v 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorm~ for Defendant, Carlisle HMA, Inc. d/b/a Carlisle Regional Medical Center pENN'S WOOD pHYSICAL THERAPY, LIMITED pARTNERSHIP, Plaintiff WALNUT BOTTOM PHASE II, and CARLISLE HMA, INC., d/b/a CARLISLE REGIONAL MEDICAL CENTER, Defendants CUMBERLAND NO. 2004-625 CIVIL CIVIL ACTION - LAW C~ERTIFICATE OF SERVICE 1, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, "'k)O da hereby certify that on this \k~ y of June 2004, served a copy of the foregoing Entry of Appearance via First Class United States mail, postage prepaid as follows: Michael J. Hanft, Esquire Hang & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Plaintiffs co-Counsel Daniel Altland, Esquire Caldwell & Kearns 3631 North Front Street Harrisburg, PA 17110 Attorney for Walnut Bottom Phase II Edward I. Swichar, Esquire Blank Rome, LLP One Logan Square Philadelphia, PA 19103-6998 Plaintiffs co-Counsel do \05_A\L1AB\TJM\LLPG\152976XJMF\15000x50000 PENN'S WOOD PHYSICAL THERAPY, LIMITED PARTNERSHIP, Plaintiff WALNUT BOTTOM PHASE II, and CARLISLE HMA, INC., d/b/a CARLISLE REGIONAL MEDICAL CENTER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-625 CIVIL ' N CIVIL ACTIO - LAW pRELIMINARY OBJECTIONS OF DEFENDANT CARLISLE HMA~ INC. d/b/a CARLISLE REGIONAL MEDIC!AL CENTER TO PLAINTIFF'S COMPLAINT 1. Defendant Carlisle HMA, Inc., d/b/a Carlisle Regional Medical Center (hereinafter "Carlisle HMA, Inc.") hereby submits Preliminmy Objections pursuant to Pa.R.C.P. 1028(a)(4) in the nature ora demurrer to Count IV of Plaintif['s Complaint. 2. Plaintiff Penn's Wood Physical Therapy, Limited Partnership (hereinafter "Penn's Wood") has instituted this action against Walnnt Bottom Phase II and Carlisle HMA, Inc. claiming that Penn's Wood enjoyed, pursuant to a Lease Agreement dated November 14, 2001, certain "exclusive use" fights pursuant to that Lease Agreement. (A true and correct copy of Plaintiffs Complaint is attached hereto as Exhibit "A"; the Lease between Penn's Wood and Walnut Bottom Phase II is itself Exhibit "A" to Plaintiffs Complaint). 3. In its Complaint, Penn's Wood alleges that Defendant Carlisle HMA, Inc. leased space from Defendant Walnut Bottom and that beginning in late January 2004 Defendant Carlisle HMA, Inc. began to use its leased space to provide outpatient physical therapy services in the professional center where both Penn's Wood and Carlisle HMA, Inc. were tenants. (See, Exhibit "A" at¶ 13). 4. Plaintiffs Complaint contains four Counts: Counts I through III are claims for money damages made by Penn's Wood as against Walnut Bottom based respectively upon theories of Breach of Lease (Count I); Intentional or Fraudulent Misrepresentation (Count II); and Negligent Misrepresentation (Count III). (See, Exhibit "A"). 5. In each of its claims articulated against Walnut Bottom, Penn's Wood claims a right to recover money damages for "lost revenues and profits, attorneys' fees, costs" ... "the value of abandoned improvements, costs incurred in :moving to and fitting out a new location, and increased rents". (See, Prayers for Relief following each of Counts I through III in Plaintiffs Complaint, Exhibit "A"). 6. Count IV of Plaintiffs Complaint is the sole Count which alleges a claim as against Carlisle HMA, Inc. Penn's Wood therein seeks injunctive relief as against Carlisle HMA, Inc. and specifically seeks judgment which would enjoin Carlisle HMA, Inc. "from providing outpatient physical therapy services at the professional center during the term of Penn's Wood's Lease", Penn's Wood also seeks lost revenues and profits, attorneys' fees, costs, interests and other relief. (See, Exhibit "A" at the Prayer for Relief following ¶ 43). 7. Carlisle HMA, Inc. submits that as a matter of law Penn's Wood has adequate remedies at law and principally against Defendant Walnut Bottom Phase II and accordingly Penn's Wood has not and cannot plead an appropriately cognizable claim for injunctive relief. 8. In addition, there is no legal support for the contention set forth in Paragraph 40 of the Complaint that Carlisle HMA, Inc. had a duty to "inquire and determine the propriety of its use of the premises in providing outpatient physical therapy services". Accordingly Penn's Wood's claims against Carlisle HMA, Inc. should be dismissed with prejudice as a matter of law. WHEREFORE, Defendant Carlisle HMA, Inc. respectfully requests that this Honorable Court grant its Preliminary Objections in the Nature of a Demurrer as against Plaintiff Penn's Wood Physical Therapy, Limited Partnership and dismiss this action with prejudice. DATE: "~j/kJb~'~' Itel ZC'JG~' BY: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN TIM IRE I.D. No. 52918' v 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3505 Attorney for Defendant, Carlisle HMA, Inc., d/b/a Carlisle Regional Medical Center PENN'S WOOD PHYSICAL THERAPY, LIMITED PARTNERSHIP, a Texas limited parlnerskip 419 Stonehcdg, Drive, Suite #3 Carlisle, PA 17013 Plaintiff, WALNUT BOTTOM PHASE II, a Pennsylvania general partnership 937 Nixcn Drive Mechanicsburg, PA 17055 And CARLISLE HMA, INC., d/b/a CARLISLE : REGIONAL MEDICAL CENTER, : 246 Parker Street : Carlisle, PA 17013 ; Defendants, : : courRT O]? COMMON PLEAS CUMBERLAND COUNTY CIVIL TERM NOIICE T,.O, pEFEND NOTICE You have been sued in count. If you wish to defend against the claims set forth in the follombag pages, you must take action within twenty (20) days aft*r this complaint tnd notice are served, by entenng a written appearance personally or by attorney IOd filing tn w~tting with the ¢ou~t yoal dcfcnacs or objections to thc claims set forth agaioat you You are warned that if you fail to do so the risc may pro(;,,d without you amd · judgmcnt may be entered against you by the court without further notice for any money chdmed in the ¢oroplain: or for any other claim or reliefrequcsted by tlc plaintifE You may lose money or property or other tight$ impoRant to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCI~. IF YOU DO NOT HAVE A LAWYER OR AVI$O Le baa dcmaadado a usted en la cortc, Si usted quiere defemlerse de estas d~s e~pues~ en las paginas siguiem~, us~d fi~e vemte (20) &as de pl~ al pa~ir de ~ f~ha dc la dc~nda y la ~fificacion. Hare fal~ as~tar u~ co~lencta esczi~ o cn ~sona o con ~ abo~ y en~cgar · la co~c en f~ ~scri~ s~s defensas o s~ objec~n~ I las de~ud~ ea .conga de su ~r~. Sea a~sado ~e si usted no se defie~e, la cone ~a ~di~as y ~Me c~r la de~nda ~ con~ su~ sM p~o aviso o Adc~, I~ c(~ pue~e g~idk a ~v~ ~1 ~d~e y r~aiere quo ~t~ o~la co~ to~s I~ p~ovisio~s de ~ d¢~n~. Usted pue~ p~ d~ero o sas propiedades u derechos ~a~antes p~a usted. CANNOT AFFOI~I.) ONE, (30 TO OR I'ELEPHONE TIlE OFFICE SET FOPx'I'{I BELOW TO HND Ot!l' WIiEB. E YOU CAN GET I.ECjAI, It kLP 32 South Bcdford Street Carlisle, PA 17013 Telephonc: (717) 2'49.3160 CunS,)erland Cotmty ]Bar As~oci.~tJt'~l 32 South Bedford Str¢cl Carlisle, PA 17013 'l'¢l~'pDonc: (717) 249-3166 9oo20o.0,'~qOl/2]239~08~4 ~z~ zol z~ ii:ih ,'~b~q HAROLD STO!qE BERGER PAGE PENN'S WOOD PHYSICAL THERAPY, LIMITED PARTNERSHIP, a Texas limited partnership ~,19 Stonehedge Drive, Suite//3 Carlisle, PA ),7013 Plaintiff, WALNI,IT BOTTOM PHASE II, a pennsylvania general parmetship 937 Nixoa Drive M¢chanicsbuxg, PA 17055 And CARLISLE lIMA, INC., d/b/a CARLISLE REGIONAL MEDICAL CENTER, 246 Parker Street Carlisle. PA 17013 Defenciants. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 2004- C~qL TERM COMPLAINT Plaintiff Porto's Wood Physical Therapy, Limitcd Partnership, a Texas limited partnership, with an address at al9 S~onehedge Drive, Suit~//3, Carlisle, Pcrmsylvania 17013, by way of Complaint against Defendants Walnut Bottom Phase II and Carlisle Regional Medical Center, hereby alleges as follows: 02X2~/~004 11; ]5 79S3884 HAROLD STO~EBERGER PAGE ~5 PARTIES 1, Plaintiffpenn's Wood Physical Therapy, Limited Parmership ("Penn'~ Wood"), is a Texas limited partnership with an addre~ at al9 Stonehedge Drive, Suite #3, Carlisle, pennsylvania 17013. 2. Defendant Walnut Bottom Phase II ("Walnut Botl~om") is a pennsylvania general partnership with tm address at 937 Nixon Drive, Mechaniesbarg, Pennsylvania 17055. 3. Defendant Carlisle IqMA, Inc.. d/b/a Carlisle Regional Medical Center ("CRMC") is a Pennsylvania corporation operating a~ a hospital with an address at 216 Pinker Street, Carlisle, Pennsylvania 17013. GENERAL ALLEGATIONS Pl~inliffPetm's Wood is in the business of providing outpatient physical therapy. Defendant Walnut Bottom is the owner of a protlgssional business park known as Walnut Bottom Business Center Phase II located at 419 Stonehedge Drive, Carlisle, pennsylvania 17013 ("Professional Center"). 6. PlaintiffPenn's Wood, as tenant, and Defendant Walnut Bottom, as landlord, entered into a written lease agreement ("Penn's Wood Lease") dated November 14, 2001 for an office suite al the Pwfessional Center. A tree and correct copy of the Penn's Wood Lease is attached hereto as Exhibit A and by reference incorporated herein and made a part hereof. 7. Pursuant to S~tions 1.14 and 6.1 of the Penn's Wood Lease, th~ premises leased by PlaintiffPenn's Wood can only be used as an "[o]utpatient physical therapy ,lini~, ,,qsoci~t~d general administrative office and any related and ancillary use relaled to thc tbregoin8." 11:15 7SBgBB4 HAROLD STO~EBERGER PAGE 8. Section 6.2 of the Penn's Wood Lease contains the following "exclusive use" provision for the benefit of Plaintiff Penn's Wood: ~ Landlord agrees that Landlord shall not lease any space in the professional Cemer (other than the Demised Premises) for use as an outpatient physical therapy or chiropractic clinic or provider, or permit any tenant (other than Tenant) in the Prot~essional Center to use its premises for any of such uses. Section 6,2 of the Pcnn'a Wood Lease is sometimes hereinafter :referred to as thc "Exclusive Use Provision." 9. Upon information and belief, Defendant CRMC :also leases a portion of the Professional Center pursuant to a lease agreement with Defendant Walnut Bottom ("CRMC Lease"). 10. Despite t~quests made upon it, Defendant CRMC has refused to produce a copy of the CRMC Lease to PlalniiffPenn's Wood. Accordingly, Plaintiff Penn's Wood docs not have a copy of the CRMC Lease to attach to the Complaint. 1 l. At the time the Penn's Wood Lease was executed between Plaintiff Penn's Wood and Defendant WaltlUt Bottom, Defendant CRMC was not using its leased p[emises at the Professional Center to provide either outpatient physical therapy services or a chiropractb clinic. 12. Upon discovery of Defendant CRMC's intent to provide outpatient physical therapy services on its leased premises at the Professional Cemter, Plaintiff Petal's Wood provided Defendant Walnut Bottom with whiten notice of this breach of the Exclusive Us~ Provision in the Penn's Wood Lease by leiter dated November 6, 2003. A true and correct copy of this letter is attached hereto as Exhibit B and by reference incorporated herein and made a part herco£. g~O'200.O000 b'2123926~v4 02Z28/2004 11:!5 7959884 HARli. D STONEBERGER PAGE 07 13. Recently, in or about late January 2004, Defendant cRMC began to use its leased premises at the Professional Center to provide outpatient physical therapy services in competition with plaintiffPenn's Wood and continues to do so. 14. Defendant Walnut Bottom has iailed to cure its breach of the Exclusive Use provision in the penn's Wood Lease. COUNT I BREACFI OF LEASE ~enn 'S ~/ood v. Walnut i 5. PlaimiffPen~'s Wood incorporates the precMing paragraphs 1 through 14 as if fully ~e! forth herein. 16. The Penn's Wood Lease is a valid lease between PlaintiffPenn's Wood and Defendant Walnut Bottom. 17. Upon information and belief, Defendant Walnut Bottom has materially breached the Exclusive Use Provision in the Penn's Wood Lease by leasing space to Defendant CRMC for use in providing outpatient physical therapy services. 18. Defendant Walnut Bottom has materially breached the Exclusive Uso Provision in the ?enn's Wood I.~ase by permitting Defendant CI~MC to u$~ its premises at the Professional Center to provide outpatient physical therapy services. 19. PlainfiffPerm's Wood has sustained, and will continue to sustain, damages aa consequence of Defendant Walnut Bottom's breach of the E~tclusive Use Provision in the Penn's Wood Lease, including, but not limited to, lost revenues arid profits mad interforence with its quiet enjoyment, as a result of Defendant CP, MC's use of the premises at the Professional Center to provide competing outpatient physical therapy services. 20. IfPlaintiffP~nn'$ Wood elects to terminate the Penn's Wood Lease as a r~sult of Defendmt Walnut Bottom's material breach of the Exclusive Llse Provision, Plaintiff Penn's 82/20/2804 i]:15 7969884 HAROLD S]'O~EBERGER PAGE 88 Wood will sustain damages, including, but not limited to, lost ~:venue* and profits, the value of abandoned improvcmcnts, costs incurrcd in moving to and fittiug out a new location, and any increased rents and addit ouaJ costs o¢cas,one~ Ly t~lt l ~0V0. WltEREFORE, PlaintiffPann's Wood demands jtldgnlo~t against D~fcndant Walnut Bottom for lost [e~vanues and profits, attorneys' fees, costs, interest, and such other relief that the Court d~ras equitable and j us1; or, alternatively, if Plaintiff Perm's Wood elects lo terminate the Penn's Wood Lcase, then Plaintiff demands lost revenues and profits, the value of abandoned improvements, coats incurred in moving to and fittir~g out a new location, any incr~sext rents and additional costs occasioned by such a move, atlorn~y~' £eelJ, costs, interesl, anti such other relief that thc Court deems equitable and just. COUNT II INTENTIONAL OR FRAUDULENT MISRlgPRESEINTATION Penn's ~Vood v. Fg~lnut Be~to~ Plaintiff incorporates the preceding paragraphs i through 20 as if fully set fonb 21. herein· 22, Defendant Walnut BotTom knew that th~ Exclusive Use Provision was an · I I I t 23. Defand~t Walnut Bottom's r~r~entation in ~,e Exclusive Use ~ovision Pl~ngffPc~'s W~d's "use" would be "exclusive" w~ ~ i~tentiol~ a~d matron] mis~pr~cntation ~ D~f~t Walnut BoSom ~w, by ~cn of having ex~ut~ the ~as~ w~ false. 24. ~ addition, Defan~nt W~ut Bottom's ~i]~e to di~lo~ ~e a]]o~able cxt~nt of ..... ' ' a~?nal C~tcr w~ a marshal [nt~tional omission. 8~/20/2884 1~,~5 7969884 HAROLD STONEBERGER PAGE 89 her~in. COUNT 11I NEGLIGENT MISREPRESi~NTATION .Penn's Wood v. Walnut Bottonn 29, Plaintiff incorporates the preceding paragraphs I through 2Sas if fully set forlh 30. Defendant Walnut Bottom knew that the Exclusive Use Provision was an essential and mat~'cial term to the lease transaction with Plaintiff Penn's Wood. 31. Defendant Walnut Bottom's representation in the Exclusive Usc Provision that Plaintiff Penn's Wood's "use" would be "exclusive" was a negligent and material misrepresentation that Defendant Walnut Bottom, by reason of having executed the CRMC L~ase, knew or should have known was false. 32. In addition, Defendant Walnut Bottom's failure to disclose the allowable extent of Defendant CRMC's "use" of the premises at the Professional C'ent~r was a negligent and material omission. 33. Defendant Walnut Bottom inteuded Plaintiff P~rm's Wood to rely upon its misrepresentation and silence to induce its execution of the P~nn's Wood Lease. 34. PlaintiffPenn's Wood justifiably reli~ upon Defendant Walnut Bottom's misrepresentation and silence, and, as a result, execute, d the Per.~'s Wood L~ase. 35. As a direct and proximate result of PlaintiffPemfs Wood's r~lianc¢ upon Defendant Walnut Bottom's misrepresentation and silence, Plaintiff Penn's Wood sustained, and will continue to sustain, damages, including, but not limited to, lost revenu~ and profits and interference with its quiet enjoyment of the lease premises at th~', Professional Center. 36. If PlalntiffP~nm's Wood elects to tea-minate the Petal's Wood Lease, Plaintiff Penn'~ Wood will sustain damages as a direct and proximate consequence of Defendant Walnut 02~'20/2_~04 li:15 795_q884 HAROLD STOFIEBERGER PAGE 10 25. Defendant Walnut Bottom intended PlaintiffPenn's Wood to rely upon Defendant Walnut Bottom's misrepresentation and silence to induce Plaintiff Penn's Wood's execution of the Penn's Wood Le~e, 26. PlaintiffPenn's Wood justifiably relied upon Defendant Walnut Bottom's misrepresentation and silence, and, a~ a re*ult, executed the Penn's Wood Lease. 27. As a direct and pn~xlmate result of Plaintiff Penn's Wood's reliance upon Defendant Walnut Bottom's intentional misrepresentation and silence, PlaintiffPenn's Wood has ~ustained, and will continue to sustain, damages, including, bul~, not limited to, lost revenues and profits and interference with its quiet enjoyment of the lea~ premises at the Professional Center. 28. If Plaintiff Penn's Wood elects to terminate the Penn's Wood Lease, Plaintiff Penn's Wood will sustain damages as a direct and proximate cons~uence of Defendant Walnut Bottom's intentional misrepresentation and silence, including, :but not limited to, lost revenues and profits, the value of abandoned improvements, costs incurred in moving to and fitting out a new location, and any increased rents and additional costs occasioned by such a move. WHEREFORE, PlaintiffPenn's Wood demands judg~nent against Defendant Walnut Bottom for lost revenues and profits, attorneys' fees, costs, interesl, and such other relief that the Court deems equitable and just; or, alternatively, if PlaintiffP~n's Wood elects to terminate the Penn's Wood Lease, then Plaintiff demands lost revenues and profits, the value of abandoned improvements, costs incurred in moving to and fitting out a new location, any increased rents and additional costs occasioned by such a move, attorneys' fe~;, eo~a, interest, and such other relief that the Court deems equitable and just. 02/2~/2004 11:!5 7969884 HARCCD STONEBERGER PAGE Bottom's negligent mist~presantation and silence, including, but not limited to, lost revenues and profits, the value of abandoned improvements, coats incurred in moving to and fitting out a new location, and any increased rents and additional costs occasioned by such a move. WHEREI~ORE, Plaintiff Penn's Wood demands judgrnem against Defendant Walnut Bottom for lost revenues and profits, attorneys' fees, costs, interest, and such other relief that the Court deems equitable and just; or, alternatively, if Pla~tiff penn's Wood elects to terminate the Perm's Wood Lease, then Plaintiff Penn's Wood demarlds lost revenues and profits, the value of abandoned improvements, costs incurred in moving to and fitting out a new location, any increased rents and additional costs occasioned by such a rnow~', attomays' fees, costs, illtetest, and such other relief that the Court deems equitable and jusl. COUNT IV INJUNCTIVE RELIEF Pentt'$ ~, ood v. ~MC 37. Piai~tiffPenn's Wood ineocporates the preceding paragraphs 1 through 36 as Jf fully set forth herein. 38. Upon information and belief, Defendant CRMC has no lawful right to use the premises at the Professional Center to provide outpati~t phys:ical therapy services. 39. . Prior to it recent use of the premises in providing outpatient physical therapy services, Defendant CMRC had knowledge that PlaintiffPenn'a Wood had the right to the exclusive use of the premises at th~ Professional Center in providing outpatient physical therapy services. 40. Defendant CMRC had :, duty to inquire and d~:ermine the propriety of its use of the @remises in providing outpatient physical therapy services ~'/'zd/:cuu¢4 il;lb ~'JU~U4 HAREED STONEBERGER PAGE 12 41. Defendant CRMC's provision of competing physical therapy scrvi¢~ at the Professional Center has, arid continues to, deny PlsintiffPcnl~l~s Wood of the ~xclusive use'and quiet enjoyment of'its leasehold for which it h~ no ad~cluate re, reedy at law. 42. PlaintiffPenn,s Wood's u.~ of the premises at the Professional C~t~ is limited to providing outpatient physical therapy services. Defendant CRMC, meanwhile, has and can use the pr~clises rot provision of services other th~ otltpatienl: Physical thtsrapy services. ACcordingly, the harm tha PlaintiffPenn's Wood is incurring without injunctive r~liefis g~¢aler than that which Defendant CRMC Wotlld incur if preliminary injunctive relief Were awarded. ~I~. Injunctiv~ relief will ~¢SrOre the siatus quo as it existed inunediately prior to Defendant CRMC's r~¢nt ~d improper interference with Plaintiff Penn's Wood's exclusive use and quiet enjoyment of the premises at the Professional Center. WHEREFORE, PlaintiffPcnn's Wood demands judi~menl against l~fendant CRMC enjoining it from providing outpatient physical therapy s~rvices at thc Professional Ccnter during thc term of the Penn's Wood Lease, lost revenue~ and profits, atlorneys' fees, costs, mterea, a~ such other relief that the Courx de,ms ~uitable and just. uRY Plaintiff demands a trial by jury of all issues so triable. Dated: February 1 i, 2004 HANFT & KNIGHT, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013-9142 (717.) 2d9-5373 Edward I. Swichar, Esquire BLANK ROME, LLP Attorney Identification No 15175 One Logan ,Square Philadelphia, PA 19103-6998 ARo~eys for Plaintiff ~32¢20/2~04 11:15 7959Cd~J4 HAREI_D -%TONEBERGER PAGE ], ]{onald D. Greenwa~a'~ m~ aUthoriz4~d repre~e~tta~Jve ofPlaintiffPe~'s W~ Physi~ ~y, Limit~ P~p, a T~s limit~ p~,~p, ~d hereby v~ that the f~s ~ fo~ in ~ for~oi~ ~1~ ~ ~e ~ ~ff~ W ~e ~ of~ k~wld~, ~tio~ ~ ~lieK T~s V~fi~fion i~ ~e ~bj~ to I~ ~ie~ for ~ fal~fl~tion to n~ofities ~ in 18 PtC.S.A. ~ 4~. Da~: F~bruar,/_! o, 2004 PROFESSIONAL CENTER LEASE AGREEMENT This Professional Center Lease Agreement (this "Lease") is entered into as of the 14a day of November, 2001 by and between the Landlord and the Tenant hereinafter named. ' ARTICLE I DEFINITIONS AND BASIC LEASE PROVISIONS 1.I Landlord: 1.2 Landlord's Address: 1.3 Tenant: Walnut Bottom Phase H, a Pennsylvania general partnership 937 Nixon Drive Mechanicsburg, PA 17055 Penn's Wood Physical Therapy, Limited Par~ership a Texas limited pm~tnership 1.4 Demised Premises: Principal Office: Suite 83, 419 Stonehedge Drive Carlisle, PA 17012; 3040 Post Oak Blwt., Suite 222 Houston, Texas 77056 1.5 1.6 Additional Charges: Commencement Date: All rental and other amounts payable under this Lease by Tenant, other tl~m Minimum Guaranteed RentaL The earlier of(i) the date that Tenant opens for business to the public in the Demised Premises or (ii) the date that is thirty (30) days after the date Landlord delivers the Demised Premises to Tenant. 1.7 Demised Premises:' 1.8 Lease Term: 1.9 Lease Year: Approximately 4,200 square feet of space in the Professional Center Lease Agreement. Tenant shall have the right to remeasure the Demised Premises after delivery and if the same differs from the foregoing square footage, the Minimum Guaranteed Rental and the Additional Charges shall be correspondingly adjusted The period beginning on the Commencement Date and ending on the last day of the sixtieth (60th) full calendar month after the Commencement Date, as may be extended pursuant to the Option Rider, if applicable. The period beginning on the Commencement Date and ending on the last day of the twelfth (12th) full calendar month after the Commencemant Date. The fast Lease Year shall include the partial month, if any, at the 1.10 Minimum Guaranteed Rental: commencement of the Lease Term if the Lease Term does not commence on the first (lso day of a calendar month. Each subsequent Lease Year shall be the period of twelve (12) full calendar months commencing with the date following the last day of the preceding Lease Year and ending on the last day of the twelfth (12th) full calendar month thereafter. Month $_/.sq. ft. Monthly vmt. 1~ -3~a Mo. 4,200 No Rent 4~' -60~' Mo. 4,200 $3,850.00 1.11 Rent or Rental: 1.12 Professional Center: 1.13 Site Plan: 1.14 Permitted Use: 1.15 Tenant's Pro Rata Share: All Minimum Guaranteed Rental and Additional Charges due by Tenant hereunder, if any. Walnut Bottom Bnsiness Center Phase H, a professional service center consisting of the existing buildings, parking areas, s~[dewalks, service areas and other improvements now existing or hereafter erected on the land located in Carlisle, Pennsylvania, more particularly dasen'bed in Exlffbit "A" attached hereto and made a part hereof for all purposes. The map outlining the Professional Center and showing the Demised Premises in relation thereto, attached hereto as Exhi~oit "B" and made a part hereof for all purposes. Outpatient physical therapy clime, associated general admims~ative office and any related and ancillary use related to the foregoing. A fraction having ;~s its numerator the total number of square feet contained in the Demised Premises, as set forth in Section 1.7 and having as its denominator the total number of square feet contained in all rentable space in all buildings in the Professional Center (whether or not actually leased) on the first of January for the relevant calendar year for which any calculation of Tenant's pro rata share is being made. The Landlord and Tenant stipulate, however, that as of the date hereof the Tenant's Pro Rata Share is 20%, and in no event shall be greater during the Lease Term, as may be extended. USPTWalnutB ottoms. DOC 2 1.16 Construction of Definitions: Each of the foregoing definitions and basic provisions shall be construed in conjunction with and limited by the references thereto in the other provisions of this Lease. If there is any conflict between any of the Lease Provisions in this Article 1 and any other provisions of this Lease, the latter will control. ARTICLE 2 TERM 2.1 Demise of Premises. Landlord hereby demises and[ leases to Tenant, and Tenant hereby takes from Landlord, the Demised Premises. Landlord further agrees that if Tenant shall perform all of the covenants and agreements herein required to be performed by Tenant, Tenant shall, subject to the terms of this Lease, at all times during the continuance of this Lease have peaceful and quiet possession of the Demised Premises. Landlord represents and warrants to Tenant that Landlord's mortgagee (if applicable), and any other party with the tight to approve this Lease, have each approved this Lease, and Landlord hereby agrees to promptly reimburse Tenant for all costs and expenses (including, without limitation, attorneys' fees and those costs incurred with Tenant's Work) incurred by Tenant pursuant to this Lease if Landlord's mortgagee and/or any other party with the tight to approve this Lease objects to this Lease after execution hereof by Landlord and Tenant. 2.2 Memorandum of Lease Landlord and Tenant each agree that at the request of either they will execute and deliver a short form lease or memorandum of lease in ~cordable form containing the basic provisions of this Lease and acknowledging that Tenant has accepted possession and reciting the exact Commencement Date and termination date of this Lease. 2.3 Tenant's Termination l~i~,ht. Tenant shall have the option to terminate the Lease on either the 3~ or 4* anmversary of the date of tl~ Lease prowded Landlord has received written notme at least three months prior to the termination date. As consideration for Tenant's tight to terminate this Lease hereunder, Tenant will pay Landlord (upon the termination date) an amount equal to (i) two (2) months of the then existing Minimum Guaranteed Rental times the number of years remaining in the Lease, plus Landlord's unamortized tramaction costs relating to this Lease, which are comprised of Landlord's brokerage commission and costs incurred in making improvements to Demised P~aises. ARTICLE 3 LANDLORD*S WORK/TENANT'S WORK 3.1 Landlord's Work in Demised Premises. Landlord, at its sole cost and expense, shall make those repairs, alterations and additions, if any, to the Demised Premises set forth in Exh~it C attached hereto and incorporated herein for all purposes (the "Landlord's Work") upon the terms and conditions contained in Exhibit C. All work and installation and matetials shall be done in a good and workmanlike manner, and shall be free of all liens, charges and other claims by any suppliers, laborers or matetialmen. Landlord shall complete the Landlord's Work and deliver the Demised Premises to the Tenant within thirty (301) days after the date listed at the top of the f~tst page of this Lease. If Landlord fails to deliver the Demised Prenfises timely, the Tenant may complete the Landlord's Work at Landlord's expense, and Landlord shall reimburse the Tenant for all such sums, along with an additional charge of fifteen percent (15%) of such sums as overhead. 3.2 T ' ' ' enants Work In the Dermsed Premises. Upon execution of the Lease, Tenant shall proceed with the application for appropriate building permits to allow Tenant to build out the Demised Premises and effect the Tenant's Work in accordance with the plans and specifications described on Exhibit C at~aehed hereto (the "Tenant's Work"). USPTWalnutBotmms. DOC 3 ARTICLE 4 RENTAL 4.1 Minimum Guaranteed Rental Tenant shall pay to Landlord Minimum Guaranteed Rental in monthly installments (on the fn'st day of each month that Minimum Guaranteed Rental is due) in the amounts specified in Section 1.11 for the Lease Term. 4.2 Late Fee. In order to defray the additional expenses involved in collecting and handling delinquent payments, Tenant shall pay on demand a late charge of $150.00 when any monthly installment of Minimum Guaranteed Rental, common area costs, or other charges pxescribed under this Lease, is paid more than ten (10) days after the due date thereof. This charge is intended to compensate Landlord for additional costs incun'ed, and is not to be considered interest. Failure of the Landlord to insist upon the payment of the late charge, isolated or repeated, shall not be deemed a waiver of Landlord's right to impose such charge for any further default. Notwithstanding anything to the conl~ary in this Lease, any payment required to be made by Tenant to Landlord which is not received by Landlord within ten (10) days of the date upon which it is due shall bear interest from the due date to the date upon which it is received at the rate of nine (9) percent per annum. ARTICLE ~ COMMON AREA 5.1 Use and Regulation of Common Area The term "Common Area" is defined for all purposes of this Lease as that part of the Professional Center intended for the comrnon use of all tenants, including among other facilities (as such may be applicable to the Professional Center) parking areas, private stxeets and alleys, landscaping, curbs, loading areas, sidewaLks, malls and promenades (enclosed or otherwise), lighting facilities, drinking fountains, meeting rooms, public toilets, Professional Center signs, service areas, common utility lines, pipes and conduits and the like, but excluding space in buildings (now or hereafter existing) designed for rental for commercial ptuposes, Landlord's ma,~gement office, utility rooms, storage spaces and out parcels located in the Profe~iunal Center or on the Professional Center property, the roof of the Professional Center, as the same may exist fi'om 1/me to time, and further excluding streets and alleys main*~ined by a public authority. Tenant. and its employees and customers, and when duly authorized pursuant to the provisions of this Lease, ita subtemmts, licensees and concessionaires, shall have the non-exelnsive right to use the Common Area as constituted from time to time, such use to be in common with Landlord, other tenanta of the Professional Center and other persons permitted by Landlord to use the same. Tenant shall not solicit bnsiness or display or offer for sale merchandise w~thin the Common Axea or at any other point outside the Dennsed Prermses or disttibute handbills in the Common Area or take any action which would interfere with the rights of other persons to use the Common Area 5.2 Restrictions on Landlord's Alterations or Additions to Common A~ ~.,. Notwithstanding anything contained to the contrary in this Lease, the Landlord shall not undertake ,ar allow the following actions or changes to be made without the prior express written consent of the Tenant: (a) thc: alteration of the location or dimensions of the Common Area, the Professional Center or any buildings or improvementa located thereon that would materially interfere with or obsu'uct access to or visibility of the Demised Premises from any road or highway; (b) the reduction of the parking ratio of the Professional Center below that required by law; or (c) add any additional stories onto the existing building of the Professional Center in which the Demised Premises are located. 5.3 Maintenance of Common Area. Landlord shall be responsible for the good and safe operation, management, and maintenance of the Common Area, and Landlord shall maintain the Common Area in good, attractive and safe condition during the Lease Term. 5.4 Common Area Costs The term "Common Area Costs'", as used herein, means all reasonable costs and expenses of every kind and nature which may be paid or incurred by Landlord during the Lease Term in operating, managing, policing, equipping, lighting, repairing, replacing and maintaining the Common Area. As used herein, the term "Taxes" shall refer to all general real estate taxes, special assessments, and governmental charges levied or assessed against the Professional Center for each real estate tax year. As used herein, the term "Insurance Premiums" shall mean the total annual insurance premiums and other charges for all insurance policies maintained by Landlord, from time to time, for or with respect to the Professional Center or any pan thereof, or any USPTW alnutB ottorns. DOC 4 land, buildings or other improvements therein, including, without lhnitation, fire and extended coverage, public liability, property damage, boiler, rental loss and other insurance in form and amount required by this Lease. For purposes of this Lease, Common Area Costs shall, for the purpose of this Lease, also include Taxes and Insurance Premiums. Notwithstanding the ft/regoing, the following items shall be excluded from the calculation of Common Area Costs: (a) the Landlord's costs and expenses incurred in connection with any f'mancing of the Professional Center or any part thereof, or any ground lease payments; (b) any cost or expense paid by the proceeds of an existing guarantee or service contract; (c) costs of a capital nature, except as specifically provided above; (d) any fees and expenses for attorneys and other profussionals that are not directly related to the general operation of the Professional Center (e.g. collection expenses, eviction efforts and lease negotiations); (e) any cost or expense related to the leasing or promotioo of space in the Professional Center; (f) any cost or expense related to the advertising of the Profussional Canter or promotional events; (g) any cost or expense incurred in connection with the correction or replacement of any construction &feet in the Professional Center, or any repairs or rnaintensnce to remedy poor or substandard workmanship or materials; any cost or expense incurred in connection with the compliance of the Co~>~,)n Area and the Professional Center with any applicable laws, statutes, ordinances, regulations, rules, court orders and rastrietive covenants, including, without limitation, any remediation of hazardons or toxic substances (as defined below); (i) any penalties, fmcs, costs or expenses incurred becau~ of any violation by Landlord or Landlord's employees, agents, contractors or attomeys of any applicable laws, statutes, ordinances, regulations, mles, court orders and restrictive covenants, including, without limitation, any remediafion of hazardous or toxic substances; and (J) any cost or expense incurred in connection with the acquisition, installation or display of paintings, sculptures or other artworks. In addition to the Minimum Guaranteed Rent and other charges prescribed in this Lease, Tenant shall pay u~y, m anvance. ~ucn monthly payments shall be based upon the Landlord's good faith estimate of the annual Common Area Costs, payable in advance but subject to adjustment after the end of each calendar year during the .~. Lease Term on the basis of the actual Common Area Costs for such calendar year. For the first ~L,e.~se Year, Common Area Costs are estimated to be $1 50 ver sauare foot ncr year (~I 4~ ¢,~' q' .... ~ ~'~,~-~ . r ~i~remiums and $ ~}~'or the remaining Conu~on 3~rea 6osts) ora t'-ota~0f ~5x2'5.'06 p'~ m'~' ~ol"i~vin'rC~r throes enUra;~ each calendar year (and before January 31 of such year) occurring durine the Lease Te~n I'an,41,~ 'n ' Tenant notice of the total amount paid by Tenant for the relevant calendar year together with the actual amount of Tenant's Share of Common Area Costs for such calendar year. If the actual amount of Tenant's Share of such Common Area Costs with respect to such period exceeds the aggregate amount previously paid by Tenant with respect thereto during the such period, Tenant shall pay to Landlord the deficiency within thirty (30) days following notice from Landlord. If, however, the aggregate amount previously paid by Tenant with respect thereto exceeds Tenant's Share of such Common Area Costs for such period, then, at 'Tenant's election, such surplus (net of any amounts then owing by Tenant to Landlord) shall be credited against the next ensuing installment of Common Area Costs due hereunder by Tenant, or shall be refunded to Tenant. Tenant shall have the right, from time to time, but not more oflen than one time per year, examine or audit the books and records of Landlord, at Landlord's office, relating to Tenant's Pro Rata Share of Common Area Costs (including Taxes and Insurance Premiums) or any other charges under the Lease. If, as a result of an examination or audit of Landlord's books and records, the amounts shown on any invoices, bills, statements or demands submitted by Landlord are found to be incorrect, Tenant shall promptly pay to Landlord any deficiency or Landlord shall promptly refund to Tenant any overpayment, as the case may be, which is established by such examination. 5.5 Parking. Landlord shall provide Tenant with a minimum of five (5) unreserved surface parking space in close proximity to the entrance of the Demised Premises, one of which shall be designated and appropriately marked as parking for "handicapped" people. 5.6 Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a lesser amount than any amount due shall be deemed to be other than on account of the earlliest amount due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such amount due or pursue any other remedy provided herein or at law or in equity. In the event Tenant submits a payment of less than the total various amounts due, then Landlord shall have the option to credit said payment towards any of said items it so desires, notwithstanding any specificatiun of Tenant. ARTICLE 6 USE 6.1 Use of Demised Premise~. The Demised Premises may be used only for the purpose or pUrPOses specified in Section 1.14 above, and for no other purposes without the p~ior written consent of Landlord. 6.2 Exclusive Use. Landlord agrees that Landlord shall not lease any space in thc Professional Center (other than thc Demised P,~mlses) for usc as an outpatient physical therapy or a chiropractic clinic or provider, or perm/t any tenant (other than Tenant) in the Professional Center to use its pretn/ses for any of such uses. 6.3 Continuous Operation. ff Tenant shall at any time leave the Demised Premises vacant or abandon the same for two (2) consecutive calendar months (except for reasons related to casualty, condemnation, repairs, environmental remedlafion or any other reason beyond the control of 'tenant), the Landlord may, as its sole and exclusive remedy, cancel this Lease, thereby releasing the parties from all future obligations and duties hereunder accruing after such termination, by giving Tenant no less than sixty (60) days' prior written notice. 6.4 Disposal of Trash. Tenant shall take good care of the Demised Premises and keep the same free from waste at all times. Tenant shall keep the Demised Premises neat, clean and free from dirt or rubbish at all times, and shall store all trash and garbage within the Demised Premises, arranging for the regular pick-up of such trash and garbage at Tenant's expense. Tenant shall not operate an incinerator or burn trash or garbage within the Professional Center area. 6.5 Compliance with Laws. Tenant shall procure, at its sole expense, any permits and licenses required for the transaction of Tenant's business in the Demised Premises and otherwise comply with all applicable laws, codes, ordinances and governmental rules and regulations applicable to the business conducted on the Demised Premises by Tenant. At all times during the Lease Term, Landlord covenants and agrees that, at Landlord's sole cost, expense and liability, Landlord shah comply (and shall cause the Professional Center and the Demised Premises to comply) with all laws, codes, ordinances and governmental rales and regulations relating to the Professional Center and/or the Demised Premises (to the extent not required or necessitated because of Tenant's specific business being conducted thereon) and with all recorded covenants, conditions and restrictions affecting or relating to the Professional Center and/or the Demised Premises, regardless of when they become effective, including, without limitation, all applicable federal, state and local laws, regulations or ordinances pertaining to air and water quality, hazardous or toxic material or substance, asbestos:, waste disposal, and other environmental matters, all zoning and other land use matters, utility availability, and with any direction of any public officer or 6 officers pursuant to law, which shall impose any duty upon the Landlord with respect to the Professional Center and/or the Demised Premises. ARTICLE 7 MAINTENANCE AblD REPAIRS 7.1 Landlord's Obligations. Landlord shall keep the foundation, the sttuctoral members and portions of the Demised Premises, the exterior walls and roof of the Demised Premises and any and all utility service lines exterior to the Demised Premises in good repair and working order, antd shall at its sole cost and expense keep the Demised Premises free of insects, rodents, vermin and other pests. Landlord shall additionally be responsible for any damages to plate glass, windows, doors, door and window frames, exterior openings, store fronts, sigus, systems, etc. caused by a failure of or latent defect in the foundation, soil, roof, exterior wails or structural portions of the Demised Premises. Landlord, however, shall not be required to make any repairs occasioned by the act or negligence of Tenant, its agents, conttactors, employees, subtenants, licensees, concessionaires and invitees; and the provisions of the previous sentence are expressly recognized to be subject to the provisions of Articles 12 and 13 of this Lease. In the event that the Demised Premises should become in need of repairs required to be made by the Landlord hereunder, Tenant shall give immediate written notice thereof to Landlord and Landlord shall commence such repairs promptly and shall complete same within a reasonable time, exercising due diligence. In the case where life, security or health of individuals is threatened or where tile loss of property (including the Tensnfs inventory, ttade fixtures and equipment) is threatened or imminent, the Tenant may inform the Landlord and/or Landlord's agent, orally or in writing, and Landlord shall immediately commence such repairs and proceed to complete the same with due diligence. 7.2 Tenant's Obligations_ Tenant shall keep the Demised Premises in good and clean condition and make all needed repairs and replacements (except for repairs and replacements required to be made by Landlord under the provisions of this Lease, including, without limitation, Sections 6.5, and 11.4, and Articles 12 and 13. Without limiting the coverage of the previous sentence (and except as provided in Section 11.4 herein) it is understood that Tena.¢s respons~ilities shall include the repair and replacement of all lighting, heating, air conditioning, plumbing and other electrical, mechanical and elec~omol~ve installation, equipment and fixtures; all utility z~pairs in ducts, conduits, pipes and wiring in the Demised Prer~ises; any sewer stoppage located in, under and above the Demised Premises; and all damage caused by break-ins or attempted break-ins to the Demised Premises. Tenant, however, shall not be required to make any repairS occasioned by the act or negligence of Landlord, its agents, contractors, employees, licensees, concessionaires and invitees. In the event that the Demised Premises should become in need of repairs required to be made by the Tenant hereunder, Landlord shall give immediate written notice thereof to the Tenant, and Tenant shall cummence such repairs promptly and shall complete the same within a reasonable period of time thereafter exercising due diligence. ARTICLE 8 ALTERATIONS 8.1 Required Approval and Renewals Except as otherwise provided herein, Tenant shall not make any alterations, additions or improvements to the Demised Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. Tenant shall not permit Tenant's employees, agents, contractors or subcon~'actors to access the roof of the Demised Premises or perform work on the roof of the Demised Premises without first providing Landlord with no less than fourteen (14) days' prior written notice. Tenant shall not puncture the roof or exterior walls of the building of which the Demised Premises form a part. Tenant may remove Tenant's trade flxtores, supplies, furniture and equipment not permanently attached to the Demised Premises provided that such removal is made prior to twenty (20) days after the expiration of the Lease Term and Tenant promptly repairs all damage to and restores all surfaces of the Demised Premises caused by such removal. All other property at the Demised Premises which is permanently attached or affixed to the floor, wall or roof of the Demised Premises shall remain upon and be surrendered with the Demised Premises upon the expiration or termination of the Lease Tenn. 8.2 Construction by Landlord. Any construction work done by Landlord within the Demised Premises shall be performed in a good and workmanlike manner and in compliance with all governmental laws and 7 requirements. Landlord agrees that in making any alterations, additions, repairs or maintenance to the Demised Premises or in exercising any right or complying with any duty under this Lease, Landlord shall not alter or modify the then existing ceilings, walls, floors, luff-down finishes in the Demised Premises, or install any pipe, conduit, duct, wire or column that is not entirely contained in and covered by the then existing walls, floors, down £mishes within the Demised Premises. ceilings or furr- 8.3 Liens. Tenant shall neither permit nor suffer any involantary lien to be fried or affLxed against the Demised Premises or the Professional Center, or any part thereof, and sMll not voluntarily grant any lien or security interest therein or in Tenant's leasehold interest created by this Lease. In the event any such involuntary or voluntary lien, including, without limitation, any mechanic's lien, materialman's lien or tax lien, is filed and Tenant has not caused the same to be released and discharged of record within ninety (90) days after notice thereof, same shall constitute a default hereunder. ARTICLE 9 EXTERIOR CHANGES AND SIGNS 9.1 Exterior Chan es. Tenant shall not, without Landlord's prior written consent (a) make any changes to the exterior of the Demised Premises, excepting only such door lettering or placards that are being customarily and normally used in connection with Tenant's business. Notwithstanding the foregoing, Landlord hereby consents to Tenant installing a sign on the exterior of the Demised Premises that shall bear the Tenant's name (the size, color, design and location of the sign shall be acceptable to both parties in their reasonable discretion and shall meet all applicable sign codes). Furthonnore, Landlord hereby consents to Tenant latin of the Demised Premises block lettering displaying the name of the Tenant and the suit p g on the exterior doors e number. 9.2 Si_~_R~. Tenant shall be permitted to install a sign alx)ve the front door of the Demised Premises and upon the existing pylon sign at its sole cost and expense, subject to Landlord's written approval, which such approval shall not be unreasonably withheld or delayed, and provided that all signage is in compliance with all applicable city codes and ordinances. ARTICLE 10 UTILll'IES 10.1 Facilities Landlord agrees to ' · cause to be provided and maintained the necessary mains, conduits and other facilities neccssury to supply water, gas, electricity, telephune service, sewage service and other commonly available utilities to the Demised Premises. 10.2 Payment for Service~ In the event that Landlord pays for utilities for the entirety of the Professional Center, Landlord shall purchase the use of and pay for all charges for elec~city, water, gas, telephone service, sewage service and other utilities fumisbed to the Demised Prernises, and Tenant shall pay on demand as Additional Rent Tenant's Pro-Rata share of such services. To the extent such services are billed directly, Tenant shall pay the provider of the services directly before such charges become ]past due. 103 Interruption in Service. In the event that any of the utility services are interrupted to the Demised Premises because of any act or omission by the Landlord or Landlord's agents, employees, licensees, invitees or contractors and such utility service(s) is not restored within a 24-hour period, the Tenant shall be entitled to an abatement of Rent for each day or portion ora day thereafter during which such utility service(s) is not reinstated. _I0.4 HVAC Guaranty. Notwithstanding anything to the contxary contained in this Lease, the Landlord hereby guarantees the good operation of the heating, ventilation and air conditioning system servicing the Demised Premises (the 'HVAC") for the first Lease Year. During the first Lease Year, the Landlord shall perform all maintenance and repairs necessary to maintain the HVAC in good and working order. In addition, Landlord also hereby guarantees the good operation of the plumbing, electrical and raechanical systems servicing the Demised Premises for the first Lease Year. During the first Lease Year, the Landlord shall perform all maintenance and repairs necessary to maintain said systems in good and working order. ARTICLE 11 INSURANCE AND INDEMNITY 11.1 Indemnity. Tenant and Landlord (the "Indemnifying Party," as the case may be) hereby agree to indemnify the opposite party and their respective principals, partuers:, shareholders, directors, affiliates, officers, employees, agents, contractors and attorneys (collectively, the "Indernnifed Parties") and hold the Indemnified Parties harmless from any loss, Liability, expense or claims arising out of damage or injury on account of any negligent or willful action or omission by the Indemnifying Party, or its invitees, agents, contractors, employees, subtenants, assignees, licensees or concessionaires; and, without lhrLiting the generality of the foregoing, the Ind.emnifying Party further covenants and agrees to indemnify and hold the Indemnifying Parties harmless from and against any penalty, damage or charge incurred or imposed by reason of any violation of law or ordinance by the Indemnifying Party. In the event of any action or claim against which any of the Indenmified Parties are entitled to indemnification hereunder, the Indemnifying Parties shall (i) immediately notify the Indemnified Party of the same; (ii) shall furnish the Indemnifying Parties with all relevant information concerning such action or claim, and (iii) shall under~mke the defense of the Indemnified Parties at its expense with counsel reasonably acceptable to the Indemnified Parties. The indemnities contained herein are subject to the terms of Section 11.5 hereof. 11.2 Tenant's Liability Insurance Tenant shall procure aud maintain throughout the Lease Term a policy or policies of insurance, at its sole cost and expense, insuring both Landlord and Tenant against all claims, demands or actions arising out of or in connection with Tenant's use or ,occupancy of the Demised Premises, or by the condition of the Demised Premises, the limits of such policy or policies to be in an amount not less than $1,000,000.00 combined single limit and shall be written by insurance companies reasonably satisfactory to Landlord. Tenant shall obtain a written obligation on the part of each insurance company to notify Landlord at least thirty (30) days prior to cancellation of or any material change in such policies. Such policies or duly executed cex~/ficates of insurance shall be promptly delivered to Landlord and renewals thereof as requ/red shall be delivered to Landlord at least th/ny (30) days prior to the expirafion of the respective policy terms. Tenant's insuranen obligations may be met through a blanket coverage insurance policy. It is expressly agreed that 11.3 Landlord's Liabll/ty Insurance Landlord shall procure and maintain throughout the Lease Term a policy or policies of insurance, at its sole cost and expense, insuring Landlord and Tenant against all claims, demands or actions arising out of or in connection with the Professional Center and the Common Area, or by condition of the Professional Center, the limits of such policy or policies to be in an amount not less than $1,000,000.00 combined single limit and shall be written by insurance companies reasonably satisfactory to Tenant. Landlord shall promptly deliver to Tenant evidence of such insurance upon request by Tenant from time to time. J 1.4 Landlord's Fire Insurance Landlord agrees to take out and maintain at all times during the Lease Term a policy of fire and extended coverage insurance on the Professional Center improvements. Such policy shall contain a replacement cost endorsement. Any policy proceeds shall be used for the repair or replacement of the property damaged or destroyed unless this Lease is terminated under the other provisions hereof. Tenant agrees that it will not at anytime during the term of this Lease carry any stock of goods or do anything in or about the Demised Premises which will in any way tend to increase the insurance rates upon the building of which the Demised Premises are a part. Tenant agrees to pay to the Landlord forthwith upon demand the amount of any increase in premiums for insurance against loss by fire and extended coverage that may be charged during the term of this Lease on the amount of insurance to be canied by Landlord on the binlding of which the Demised Premises are a .part resulting, from the foregoing or from Tenant doing any act in or about said Demised Premises which does so increase the insurance rates, whether or not the Landlord shall have consented to such act on the part of the Tenant. If Tenant installs upon the Demised Premises any electrical equipment which constitutes an overload of the elec~cal lines of the Professional Center buildings, Tenant shall at its own expense make whatever changes are necessary to comply with the requirements of the insurance underwriters and any governmental authority having jurisdiction there over, but nothing herein contained shall be deemed to constitute Landlord's consent to such overloading. 11.5 Waiver of Subrogation Landlord and Tenant hereby release each other and their respective agents, employees, partners, shareholders, officers and directors from any claims or actions for damage to any person or to the Demised Premises or the Professional Center that are caused by or result from risks insured or USPTWalnu tBolt oms. DOC 9 which could be insured under any insurance policies maintained or required to be maintained by the parties hereto under the terms of this Lease or in force at the time of any such damage. Landlord and Tenant each covenant and agree that no insurer shall bold any tight of subrogation against the other with respect to any such damage or loss. Each party shall cause each insurance policy obtained by it to provide that the insurance company waives all rights of recovery by way of subrogation against the other party in connection with any damage covered by any such policy. ARTICLE 12 DAMAGE BY FIRE AND OTHER CAUSES 12.1 Dama e and Re air. In the event that any damage in excess of 50% or greater of the floor area of the Demised Prem. i~es shall be damaged by fire or other casualty, or in the event the Demised Premises cannot be repaked or restored fully within one hundred twenty (120) days of the casualty, then either Landlord or Tenant may terminate this Lease by providing at least sixty (60) days notice to the opposite party. In the event that Landlord is to unde~ake the repair and/or restoration of the Demised Premises, Landlord shall cause such damage to be repaired, and the Demised Premises to be restored to the condition in which the Demised Premises were in immediately preceding such casualty (including the Landlord's Work). Landlord shall commence such repair, restoration and reconstruction within sixty (60) days after the occurrence of such fire or other casualty, and Landlord shah complete the same within a reasonable time thereafler (butt in no event later than one hundred twenty (120) days from the date of the casualty), the Landlord diligently pursuing such repaim, restoration and reconslruction to completion. If Landlord fails to commence such restoration within the 60-day period, or faitlffully perform its obligations hereunder, the same shall be an Event of Default and the Tenant shall have the right to terminate this Lease immediately by giving notice to the Landlord. Notwithstanding the foregoing, in the event that such fire or other casualty occurs within thc last Lease Year during thc ]Lease Term and Tenant elects not or is not able to extend the Lease Term further in accordance with Exhibit D atlached, neither party shall be required to repair, restore or reconstruct thc Demised Premises and either party shall have the fight to terminate this Lease. 12.2 Abatement of Re~t~l. In the event that this Lease is not terminated after damage to the Demised Premises or thc Professional Center buildings as provided herein, ' ' Mmtrnunl Guaranteed Rental shall be abated from the date of casualty through and including the date that is thirty (30) days after the date that the Landlord notifies Tenant that the Demised Premises (including the Landlord's Work) have'been repaired, restored and reconstructed. Rent shall not be abated in the event damage to the Demised Premise.,; or thc Professional Center buildings arc caused by Tenant. ARTICLE 13 EMINENT DOMAIN 13,1 Taking of Demised Premises. If (i) any portion of the floor area of the Demised Premises or the buildings in the Professional Center or (ii) any part of the Common Axes that materially, adversely affects the parking or access to the Demised Premises or the Professional Center should be taken for any public or quasi-public use under any governmental law, ordinance or regulation or by hght of eminent domain or by private purchase in lieu thereof, this Lease shaH, unless - Landlord and Tenant agree otherwise in writing, terminate and the Rent shall be abated during the unexpired portion of the Lease Term, effective on the date physical possession is taken by the condemning authority. .13.2 Award. All compensation awarded for any taking (or the proceeds of private sale in lieu thereof) of the Demised Premises or Common Area shall be thc property of Landlord, and Tenant hereby assigns its interest in any such award to Landlord; provided however, Landlord shall have no interest in any award made to Tenant for Tenant's moving and relocation expenses or for the loss of Tenant's £Lxtures and other tangible personal property if a separate award for such items is made to Tenant. USPTWalnutBottoms. DOC 10 ARTICLE 14 ASSIGNMENT AND SUBLETTING 14.1 Assignment and Sublett/n~,. Except as permitted/n this Article 14, Tenant shall not assign or in any manner Wanafer this Lease or any estate or interest therein, or sublet the Demised Premises or any part thereof, or grant any license, concession or other right of occupancy of any portion of the Demised Prennses or mortgage, pledge, or otherwise ....... encumber ~ts interest m this Lease or m the Dermsed Prenuses, Mthout the prior written consent of Landlord, which such consent shall not be unreasonably withheld or delayed. ..14.2 Permitted A~qi .~m,mt and Subletting. Notwithstanding the foregoing, the following shall be considered to be permitted assignments or subleases under this Lease, and not events of default hereunder: a. Any reorganization, merger or consolidation of the general partner of the Tenant into a parent, subsidiary or s~ling company with a resulting net worth greater than such general parmer, or b. The transfer or sale of all or any portion of the Tenant to U.S. Physical Therapy, Inc, any parent, subsidiary or sibling company of U.S. Physical Therapy, Inc. with a resulting net worth greater than Tenant, or to any publicly traded company with a resulting net worth greater than Tenant; or c. The transfer or sale of all or any portion of the stock or assets of U.S. Physical Therapy, Inc. Tenant agrees to reimburse Landlord's reasonable attorney's fees, not to exceed $1,500.00, for any such requested Wamfer, assignment, subletting, license or concession agreement, chang{; of ownership, mortgage or hypothecation of this Lease or Tenant's interest in and to the Demised Premises. ARTICLE 15 TAXEs If the Demised Premises shall be separately assessed for Taxes, then Tenant's Pro Rata Sham of the Taxes shall be the amount of suer separate assessment. During any year which shall be less than a full tax year, TenanCs Pro Rata Share of Taxes shall be prorated on a daily basis between the parties to the end that Tenant shall only pay for taxes atm'butable to the portion of the tax year occurring within the Lease Term. ARTICLE 16 DEFAULT 16.1 Events of Default. Each of the following events shall be deemed to be an Event of Default by Tenant under this Lease: ao Tenant shall fail to pay any installment of Rent or any other obligation hereunder involving the payment of money when due hereunder and shall not cure such failure within ten (I 0) days after written notice thereof to Tenant; Tenant shall fail to comply with any term, provision ,or covenant of this Lease, other than as de~aribed in subsection Iai above, and shall not cure such failure within thirty (30) days written notice thereof to Tenant; provided that if such i~,flure cannot be reasonably cured within such 30~day period, Tenant shall not be in default if Tenant commences such cure within the 30- day period and completes the same with due diligence; Tenant shall become insolvent, or shall make a Iransfer in fraud of creditors, or shall make an assignment for the benefit of creditors; Tenant shall file a petition under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar law or statute of the United States or any State thereof; or Tenant shall be adjudged bankrupt or insolvent in proceedings filed against Tenant; and USPTWalnutBottoms. DOC 1 1 e. A receiver or Trustee shall be appointed for the Demised Premises or for all or substantially all of the assets of Tenant. 16,2 Remedies. Upon the occurrence of any Events of Default, Landlord shall have the option to pursue any one or more of the following remedies without any notice or demand whatsoever: Terminate th/s Lease, in which event Tenant shall immediately surrender possession of the Demised Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which Landlord may have for possession or arrearages in Rent, enter upon and take possession of the Demised Premises and expel or remove Tenant and any other person who may be occupying the Demised Premises or any part thereof, by force if necessary, without being liable for prosecution of any claim for damages thereS~r; and/or Enter upon and take possession of the Demised Premises and expel or remove Tenant and any other person who may be occupying the Demised Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim for damages therefor, with or without having terminated the Lease. Exercise by Landlord of any one or more remedies bereby granted or otherwise available shall not be deemed to be an acceptance of surrender of the Demised Prem/ses by Tenant, whether by agreement or by opemtiun of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant 76.3 Landlord's Right to Cure Defanlt~ If Tenant should fi~fl to make any payment or cure any default hereunder within the time herein permitted, Landlord, without being trader any obligation to do so and without thereby waiving such default, may make such payment and/ur remedy such other default for the account of Tenant (and enter the Demised Premises for such purpose), and thereupon Tenant shall be obligated, and hereby agrees, to pay Landlord, upon demand, all costs, expenses and disbursements (m¢,luding reasonable attorneys' fees) recurred by Landlord in taking such remedial actions. 16.4 Temtination by Landlord. In the event Landlord elects to terminate this Lease by reason of an Event of Default, then notwithstanding such termination, Tenant shall be liable for and shall pay to Landlord the sum of all Rent and other indebtedness accrued to the date of such temainafion plus, as damages, an amount equal to the aggregate amount of the Rent and all other sums reserved hereunder for the remaining unexpired portion of the Lease Term (had this Lease not been so terminated by Landlord) less the then "fair rental value" of the Demised Premises for such period. In the event the patties are unable to agree as ta the "fair rental value," each shall select a conu~ercial appraiser licensed by the Commonwealth of Penusylvania to determine the fair rental value, the average of which shall be conclusively established and accepted by the parties as the "fair rental value." 16.5 Termination of Tenant's Right to Possession. In the event Landlord elects to repossess the Demised Premises without terminating the Lease, then Tenant shall be liable for and shall pay to Landlord all Rent and other indebtedness accrued to the date of such repossession, plus all Rent and other sums requkod to be paid by Tenant to Landlord during the remainder of the Lease Term, diminishe~l by any net sums thereafter received by Landlord through reletfing the Demised Premises during said period. In no event shall Tenant be entitled to any excess rental obtained by reletting over and above the Rent herein reserved. Actions to collect amounts due by Tenant as provided in this Section 16.5 may be brought from time to time, on one or more occasions, without the necessity of Landlord's waiting until the expiration of the Lease Term. 16.6 Default by Landlord In the event of any default by Landlord hereunder, except as otherwise provided herein, Tenant will give Landlord written notice specifying such default with particularity, and Landlord shall thereupon have thirty (30) days (or a shorter period if provided for lierein) in which to cure such default or to commence to cure such default if any such default cannot be reasonably cured within such 30-day period, in which event Landlord shall prosecute such cure with diligence to a conclusion. Unless and until Landlord fails to so cure or proceed with diligence to cure any default after such notice, Tenant shall not have any remedy or cause of action by reason thereof. However, notwithstanding anything herein to the contrary, if Landlord fails to so cure or proceed USF I WalnutB otto ma. DOC 12 with diligence to cure any default after such notice, then Tenant shall have the right (but not the obligation) to cure such failure, and Tenant may offset the costs Tenant incurs in so curflag Landlord's failure against the Rent owing under this Lease. ARTICLE 17 HOLDING OVER AND SURRENDER 17.1 Ho~. In the event Tenant remains in possession of the Demised Premises after the expiration of this Lease and without the execution of a new lease, it shall be deemed to be occupying the Dem/sed Premises as a tenant at will at a rental equal to the Minimum Guaranteed Rent herein provided plus fifty percent (50%) of such mount and otherwise subject to all the conditions, provisious and obligations &this Lease insofar as the same are applicable to a tenancy at will. 17.2 Surrender. At the expiration of this Lease, Tenant shall surrender the Demised Premises in the same condition as it was upon delivery of possession thereto under tiffs Lease, casualty damage and reasonable wear and tear excepted, and shall deliver all keys and combinations to locks, safes and vaults to Landlord. Before surrendering said premises, Tenant shall remove all its personal property including trade fixtures, and shall repair any damage caused thereby. Tenant's obligations to perform this provision shall survive the end of the term of this Lease. If Tenant fats to remove its property upon the expiration of this Lease, said property shall be deemed abandoned and shall become the property of Landlord. ARTICLE 18 NOTICES Wherever any notice is required or permitted hereunder suc]h notice shall be in writing. Any notice required or permitted to be delivered hereunder shall be delivered by hand or nationally recoLmi~ed overnight express service or sent by United States Registered or Certified Mail, adequate postage prepaid and, for purposes of the calculation of the various lime periods referred to herein, shall be deemed received when delivered to the place for giving notice to a party referred to herein; in the case of delivery by hand or overnight express service or upon the earlier to occur off (i) actual receipt as indicated en the signed receipt, m (ii) three (3) days aider posting as herein provided, in the case of delivery by mail in the manner provided above. All notices given hereunder shall be addressed to the parties hereto at their respective addresses set out in Sections 1.2 and 1.4 above and a copy to Tenant at the Demised Premises, or at such other addresses as they have theretofore specified by written notice. ARTICLE 19 SUBORDINATION AND ATTORNMENT 19.1 Subordination. Tenant accepts this Lease subject and subordinate to any mortgage, deed of trust or other lien presently existing or hereafter placed upon the Demised Premises or the Professional Center as a whole, and to any renewals and extensions thereof. Landlord is hereby in'evocably vested with full power and authority to subordinate this Lease to any mortgage, deed of trust or other lien hereafter placed upon the Demised Premises or the Professional Center as a whole, and Tenant agrees upon demand to execute such further instruments subordinating this Lease as Landlord may request. Any such subordination, however, shall be on the express condition and shall include a binding attornment and nondisturbance agreement on the part of any holder of any mortgage covering in whole or in part the Professional Canter and the Demised Premises, said agreement being for the benefit of Tenant and providing that so long as Tenant is not in defanlt hereunder, no default under such mortgage and no proceeding to foreclose the same, exercise of any power of sale thereunder, or exercise of any other remedy provided for therein, will disturb Tenant's possession of th,.- Demised Premises under the Lease, and the leasehold interest of Tenant and Tenant's rights, privileges and benefits under the Lease will not be cut off or otherwise adversely affected thereby. 19.2 Altomment. In the event any such mortgage or deed of trust is foreclosed, Tenant shall consider the purchaser at any foreclosure or trustec's sale to be the Landlord hereunder, and Tenant will attorn to the purchaser at any such sale and will recognize such purchaser as the owner and Landlord under this Lease, so long as such purchaser agrees to the nondisturbance agreement described in Section 21.1 above. USPTC/aln utBo .oma. DOC 13 19.3 Attorneys' Fees. Landlord agrees to reimburse Tenant's reasonable fees, not to exceed $500.00, for reviewing or negotiating any subordination, nondisturbance and attornment agreement and related documents required to be executed by Tenant under this Article. ARTICLE 20 LANDLORD'S LIEN In addition to the statutory landlord's lien, and in addition to the other remedies provided herein, Landlord shall have at all times a valid security interest to secure payment of all Rent and other sums of money becoming due hereunder from Tenant, and to secure payment of any damages or loss which Landlord may suffer by reason of the breach by Tenant of any covenant, agreement or condition contained[ herein, upon all goods, wares, equipment, fixtures, furniture, improvements and other personal property of Tenant presently, or which may hereafter be, situated on the Demised Premises, and all proceeds therefrom, and such property shall not be removed without the consent of Landlord until all arrearages in Rent as well as any and all other sums of money then due to Landlord or to become due to Landlord hereunder shall fu'st have been paid and discharged and all the covenants, agreements and conditions hereof have been fully complied with and performed by Tenant. Notwithstanding the foregoing, Landlord hereby waives any lien and/or security interest it may have (whether statutory, judicial, contractual or otherwise) in or on Tenant's personal property, furniture, equipment, and/or fixtures that Tenant obtains by way of leasing or financing. In addition, Landlord agrees to execute any and all agreements further waiving or subordinating Landlord's Lien to such lease and/or security agreement that the secured party/lessor may require. ARTICLE 21 MISCELLANEOUS 21.1 Relationship Between Parties Nothing herein cont~dned shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of a parmership or joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent, nor any other provision contained herein, nor any acts of the parties h~to, shall be deemed to create any relationship between the parties hereto other than the relationship of landlord and tenant. 21.2 Consent of Par6es. Whenever either party is required hereunder to obtain the approval or consent of the other, the approving or consenting party shall not unreasonably withhold or delay such approval or consent. 21.3 No Waivers. One or more waivers of any covenant~ term or condition of this Lease by either party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by the other party requiring such consent or approval shall not be deemed to waive or render unnecessary cunsent to or approval of any subsequent similar act. 21.4 Furee Maje~e. Whenever a period of time is herein prescribed for action to be taken by either Landlord or Tenant, Landlord a. nd Tenant shall not be liable or respons~,le for, and there shall be excluded from the computation of any such period of time, any delays due to strikes (not caused by such party), riots, acts of God, shortages of labor or materials, war, governmental laws, regulations or reslxictions or any other causes of a similar kind which are beyond the reasonable control of Landlord and/or Tenant, except that adverse financial or economic conditions shall not be included. 21.5 Certifications. Each party, upon request of the other party, shall execute and deliver to the other party, in recordable form, a certificate stating that this Lease is unmodified and in full force and effect, or in full force and effect as modified, and stating the modifications. The certificate also shall state the amount of Minimum Guaranteed Rental, the dates to which rent and other charges have been paid in advance, if any. The certificate shall also state whether or not, to the actual knowledge of the signer of such certificate, the other party is in default in performance of any covenant, agreement or condition contained in this Lease and, if so, specify each such default of which the signer may have knowledge. Failure to deliver the certificate within ten (10) days, after the same is requested, shall be conclusive upon the party failing to deliver the certificate for the benefit of the party requesting the certificate and any successor to the party requesting the certificate, that this Lease is in full force and effect and USPT%Valnuffiottoms. DOC ] 4 has not been modified except as represented by the party requesting the certificate. Notwithstanding anything to the contrary herein, neither party shall be obligated to execute more than three (3) such certificates in any Lease Year. 21.6 Address Verification. Landlord hereby stipulates th;at Section 1.4 sets forth the correct physical and mailing address of the Premises. Landlord understands and acknowledges that Tenant will rely upon the address provided by Landlord in producing marketing materials relating to the Tenant's business. Landlord hereby agrees to reimburse Tenant up to $5,000.00 for all costs and expenses that Tenant incurs in producing such marketing materials if the address provided by the Landlord is incorrect 21.7 Governing Law. The laws of the Commonwealth of Pennsylvania shall govern the intexpretation, validity, performance and enforcement of this Lease. If any provision of this Lease should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Lease shall not be affected thereby. 21.8 Attorneys' Fees. In the event of a dispute hereunder and either party institutes an action or proceeding against the other, the prevailing party in such action or proceeding shall recover reasonable attorneys' fees and court costs from the other. 21.9 Successors. The terms, provisions and covenants contained in this Lease shall apply to, inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors, assigns (when permitted under the terms of this Lease) astd legal representatives, except as otherwise herein expressly provided. 21.10 Entire Agreement This Lease contains the entire agreement between the parties, and no agreement shall be effective to change, modify or terminate this Lease in whole or in part unless such is in writing and duly signed by the party against whom enforcement of such change, modification or termination ia sought. Landlord and Tenant hereby aclmowledge that they are not relying on any represantution or promise of the other, except as may be expressly set forth in fl~ Lease. 21.11 Time of the Essence. It i~ understood and agreed that time is of the essence with respect to all time periods referenced herein. EXECUTED as of the date herehaabove stated. LANDLORI): WALNUT BOTTOM PHASE H, a Pennsylvania general partnership USPTWalnutBottoms. DOC 15 TENANT: PENN'S WOOD PHYSICAL THERAPy, LI1VIITED PARTNER~:IHp, a Texas limited partnership BY: Rehab Partners # 5, Inc. (General Partner) BY: NAME: TITLE: 16 EXHIBIT A -- LEGAL DESCRII~TION ALL THAT CERTAIN tract of land situate in the Township of South Middleton, County of Cumberland, Commonwealth of Pennsylvania, bounded and described as follows: BEGINNING at a steel pin set in the Westerly line of Stonehedge Drive (60 feet wide) at the southeast corner of Lot No. C5, said pin being located a distance of 28~.6 feet more or less south of the southerly line of Walnut Bottom Road (SR 3023); thence along the said Westerly line of Stonehedge Drive, South 32 degrees, 45 minutes, 50 seconds East, a distance of 133.97 feet to a point; thence continuing along the same by a curve to the right having a radius of 270.00 feet, an arc distance of 130.62 feet, the chord of which is South 18 degrees, 54 minutes, 17 seconds East, 129.35 feet to a steel pin; thence along lands now or formerly of John E. Niesley, South 57 degrees, 14 minutes, 10 seconds West, a distance of 398.56 feet to a steel pin; thence along lands now or formerly of Meedpenn Group, North 30 degrees, 54 mimutes, 45 seconds West, a distance of 34.76 feet to a steel pin; thence continuing alo~ lands now or formerly of Meedpenn Group and along lands now or formerly of United Telephone Employees Federal Credit Union, North 31 degrees, 21 minutes, 30 seconds West, a distance of 224.89 feet to a steel pin; thence along lands now or formerly of Orlando and Ann E. DeBrien and along lands now or formerly of Orrstown Bank, Nortk 57 degrees, 14 minutes, 10 seconds East, a distance of 422.91 feet to a steel pin, the point of BEGINNING. CONTAINING 2.51 acres of land. BEING Lot No. C6 of the Final Subdivision Plan for Stonehedge Commercial Office Park, which plan is recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Plan Book 59, Page 17. BEING the same premises which John E. Niesley and Stonehedge Developers, Inc., a Pennsylvania corporation, by their Deed dated March 19, 1997 and recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book 161, Page 718, granted and conveyed unto Thomas Becker, Robert Dunham and Harold Stoneberger, as tenants in common, t/a Walnut Bottom Phase II Partnership. ~x~[BIT B - SITE PLAiN EXHIBIT C -- LANDLORD'S WORK 1. C_Commencement Dat,' The earl/er of (i) the date that Tenant opens for business to the public in the Demised Premises an-ri (ii) the date that is thirty (30) days from the date Premises to Tenant. on which Landlord delivers the Dem/sed 2. Landlord's Work. Landlord's Work shall constitute as follows: a. Provide two (2) bathroom facilities that are ADA compliant; and b. Drop ceiling grid and lights to 10' throughout Demised Premises except for the pool area in which ceiling and light heights shall be 12'; and All Landlord's work and installation and materials shah · be done m a good and workmanlike manner, and shall be free of all liens, charges and other claims by any suppliers, laborers or materialmen. Landlord shall complete the Landlord's Work and deliver the Demised Premises to the Tenant within thirty (30) days after the date listed at the top of the first page of this Lease. If Landlord fails to deliver the Demised Premises timely, the Tenant may complete the Landlord's Work at Landlord's expense, and Landlord shall reimburse the Tenant for all such sums, al°ng with an additional charge of ffficen percent tT ~o~,~ ,~t- 3. Tenant's Work. In the event that the Tenant's plans and Specifications have not been agreed to at the time that this Lease has been executed, Tenant shah promptly deliver to the Landlord proposed plans and specifications for the Tenant's Work for the Landlord's review. If the Landlord does not approve such plans and specifications within ftve (5) days after receipt of the same, the · Tenant shall e~ther have the right to resubmit revised plans and specifications for the Landlord's approval, or t~Ilninate ~ Leas~e further obligaaons or liability hereunder. Tenant shall, on the ' - · ' · thereby releasing either party from any promptly commence the Tenant's xxr^-~. effecling the Landlord's Work. days after the date on which the Lease is e *~utcu, men lanant shall have the right to cancel th/s L~3as~ immediately, thereby releasing both parties from any further obligations hereunder (except those specifically survive termination). In addition, if, within thirty (30) days after the date on that may the top of the first page of this Lease, Tenant is unable to (i) open for business to the public in the Demised Premises for any reason whatsoever, and/or (ii) receive an unqualified Certificate of Occupancy for the Demised Premises from the appropriate authorities for any reason whatsoever, then Tenant shall have the right to cancel this Lease by delivering written notice of such cancellation within fifteen (15) days after the expiration of either of the foregoing 30-day peri~ds thereby releasing both parties from any further obligations hereunder (except those that may specifically surmve termination). Landlord agrees that if Tenant terminates this Lease for any of the reasons set forth above, and the canse for cancellation was within the Landlord's contxol, Landlord shall, within thirty (30) days of receiving written demand, reimburse Tenant all costs and expenses incurred by the Tenant in connection with Tenant's Work (including, without limitation, architect's fees, engineer's fees, contractor"s fees, costs and expenses of plans, specifications, and other supplies and materials). 920715.940252/149069.02 OPTION RIDER Option Periods. Tenant may extend the Lease Term three (3) consecutive Lease Year periods each if: (i) Tenant sends written notice to Landlord of its intention to do so at least ninety (90) days prior to the end of the then existing Lease Term and (ii) the Tenant is not then in default under the Lease: During any such extended period of the Lease Term, the terms and provisions of this Lease shall remain the same except for the payment of Minimum Guaranteed Rental, which shall be determined as set forth below. Minimum Guaranteed Rental During Extenclcd Lease Term. During each extension period hereunder, Tenant shall pay to Landlord Minimum Guaranteed Rental in monthly installments in an amount equal to the following: First Lease Year Extension: Second Lease Year Extension: Third Lease Year Extension: $4,250.00 per month $4,335.00 per month $4,420.00 per month PENN'S WOOD PHYSICAL THERAPy, LIMITED PARTNERSH/~, Plaintiff WALNUT BOTTOM PHASE II, and CARLISLE HMA, INC., d/b/a CARLISLE REGIONAL MEDICAL CENTER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-625 CIVIL CWIL ACTION - LAW ~CERTIFICATE OF SERVIC_.E I, Joarme M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this \ ["~ day of June 2004, served a copy of the foregoing Preliminary Objections of Defendant Carlisle HMA, Inc. to Plaintiff's Complaint via First Class United States mail, postage prepaid as follows: Michael J. Hang, Esquire Hanft & Knight, P.C. 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Plaintiff's co-Counsel Edward I. Swichar, Esquire Blank Rome, LLP One Logan Square Philadelphia, PA 19103-6998 Plaintiffs co-Counsel Daniel Altland, Esquire Caldwell & Keams 3631 North Front Street Harrisburg, PA 17110 Attorney for Walnut Bottom Phase II k~oanne M. Parr PENN' S WOOD PHYSICAL THERAPY, LIMITED PARTNERSHIP, Plaintiff WALNUT BOTTOM PHASE II, And CARLISLE HMA, INC., d/b/a CARLISLE REGIONAL MEDICAL CENTER, Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND cOUNTY, pENNSYLVANIA : No. 2004-625 CIVIL _PRAECIPE TO DISCONTINUE ACTION To the Prothonotary: Please mark the above-captioned matter settled and discontinued. Respectfully submitted, HANFT & },5NIGHT, P.C. Sean M. Shultz, Esquire Attorney 1D No. 90946 11 Roadway Drive, Suite B Carlisle, PA 17013 (717) 249-5373 Attorney for Plaintiff Penn's Wood Physical Therapy Limited Partnership Dated: O(.,Jz, l:~W I~ , 2004