HomeMy WebLinkAbout08-6140
SIRLIN GALLOGLY & LESSER, P.C.
1529 Walnut Street, Suite 600
Philadelphia, PA 19102
(215) 8649700
By: Peter A. Lesser, Esquire
Identification No. 59433
CEDAR-PENNSBORO COMMONS, LP
Successor in interest to
CEDAR-PENNSBORO, LLC
Agent: Cedar Shopping Centers
Partnership, L. P.
44 South Bayles Avenue
Port Washington, NY 11050
V.
TERRI MATTHEWS individually and
d/b/a CALIFORNIA FUSION
43 Lee Ann Court
Enola, PA 17025-1948
And
2240 Dewey Lane
Enola, PA 17025
Attorneys for Defendant
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 08 - &14() O'M(-T?-rft
WARRANT OF ATTORNEY
ENTRY OF APPEARANCE
PRAECIPE FOR ASSESSMENT OF DAMAGES
AND CONFESSION OF JUDGMENT
TO THE PROTHONOTARY:
Enter my appearance for and on behalf of Defendant, TERRI MATTHEWS,
individually and d/b/a CALIFORNIA FUSION, above named:
Pursuant to the authority contained in the warrant of attorney, the original or a
copy of which is attached to the Complaint filed in this action, we appear for the Defendant and
confess judgment in favor of the Plaintiff and against the Defendant as follows:
Unpaid rent, real estate, insurance and
Common Area Maintenance for the period
through September 22, 2008 $40,459.30
Attorneys' Commission 10 %
Accelerated Rent
10/1/08 - 7/31/10
$ 4,045.93
$46,093.36
Total
9 98. 9
PETER A. LESSER, ESQUIRE
Attorney for Defendant
2
SIRLIN GALLOGLY & LESSER, P.C.
1529 Walnut Street, Suite 600
Philadelphia, PA 19102
(215) 864-9700
By: Peter A. Lesser, Esquire
Identification No. 59433
CEDAR-PENNSBORO COMMONS, LP
Successor in interest to
CEDAR-PENNSBORO, LLC
Agent: Cedar Shopping Centers
Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
Attorneys for Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
V.
TERRI MATTHEWS individually and
d/b/a CALIFORNIA FUSION
43 Lee Ann Court
Enola, PA 17025-1948
And
2240 Dewey Lane
Enola, PA 17025
NO. 0Er CO?ya C,?jl ?c/r?
COMPLAINT IN
CONFESSION OF JUDGMENT - MONEY DAMAGES
PURSUANT TO WARRANT OF ATTORNEY
COUNTI
Breach of Contract - Damages
Plaintiff, through its attorneys, Sirlin Gallogly & Lesser, P.C., sets forth the
following cause of action pursuant to the Warrant of Attorney set forth in the Lease dated June
15, 2005.
1. Plaintiff is CEDAR-PENNSBORO COMMONS, LP, a Delaware
limited partnership. Its managing agent is Cedar Shopping Centers Partnership, L.P. located
at 44 South Bayles Avenue, Port Washington, NY 11050. Plaintiff is the owner of the
a
Pennsboro Commons, 378 East Penn Drive, Enola, PA 17025 having purchased it from the
prior owners William F. Rothman, Charles F. Schubert and Samuel L. Reed, Co-Partners
t/d/b/a Rothman Schubert & Reed.
2. Defendant is, TERRI MATTHEWS, individually and d/b/a
CALIFORNIA FUSION. Defendant maintains addresses at 43 Lee Ann Court, Enola, PA
17025-1948 and 2240 Dewey Lane, Enola, PA 17025.
3. On or about June 15, 2005, the predecessor of Plaintiff, Defendant and
Jennifer Scott entered into a Lease for the rental approximately 1,710 square feet of
commercial space at the Pennsboro Commons, 378 East Penn Drive, Enola, PA 17025. The
term of the Lease was for an initial period of five (5) years which will expire on July 31,
2010. A true and correct copy of said Lease is attached hereto, marked as Exhibit "A" and
made a part hereof.
4. Pursuant to the Lease, Defendant is responsible for the payment of
monthly rent in the amount of $2,273.33 plus Common Area Maintenance charges, Real Estate
Taxes and insurance.
5. Defendant is in default of the terms of the Lease.
Defendant has failed to pay rent and proper charges as of September 22,
2008 in the amount of $40,459.30, as set forth on the Tenant Ledger attached as Exhibit "B".
6. Despite repeated demands; Defendant has refused and continues to refuse
to pay any or all of the remaining balance due to Plaintiff.
7. Defendant is also in default of the Lease for prematurely vacating the
premises in January 2008.
2
8. By letter to Defendant dated July 8, 2008, Plaintiff provided a notice of
default to Defendant. A true and correct copy of said letter is attached hereto, made a part
hereof and marked as Exhibit "C".
9. The balance due pursuant to the Lease is $44,505.23 which represents
unpaid rent and proper charges specifically set forth in Paragraph 5 above in the amount of
$40,459.30 together with an attorneys' commission of 10% in the amount of $4,045.93.
10. An Averment of Default is attached hereto.
11. A true and correct copy of the Lease under which Plaintiff is confessing
Judgment is attached hereto and marked Exhibit "A".
12. The Lease under which Plaintiff is confessing Judgment has been
assigned as set forth above.
13. Judgment has not been entered against Defendant in any jurisdiction for
the unpaid sum of $40,459.30 or attorneys' commission of $4,045.93.
14. Judgment is demanded as authorized by the Warrant of Attorney
contained in Exhibit "A".
15. The Warrant appearing in the attached Lease is less than twenty (20)
years old.
16. The Judgment being sought herein is not being entered against a natural
person in connection with a consumer credit transaction.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in
the sum of $44,505.23 as authorized by the Warrant appearing in the attached Lease together
with interest, attorneys' fees and costs.
3
COUNT II
Accelerated Rent
17. Plaintiff incorporates by reference the allegations contained in Paragraphs
1 through 16 above, as though fully set forth herein at length.
18. Accordingly, as provided by Section 18.01(1) of the Lease Agreement,
Defendant is responsible for the payment of accelerated rent and additional rent for the
remainder of the lease term discounted to present value at the rate of 6% per annum. for the
period commencing October 1, 2008 through July 31, 2010. Accelerated rent and additional
rent is calculated in the amount of $46,093.36.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the
amount of $46,093.36 as set forth in Count II of the Complaint as authorized by the Warrant
appearing in the attached Lease together with interest from the date of judgment and costs.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the
total amount of $90,598.59 as set forth in Counts I and II of the Complaint as authorized by the
Warrant appearing in the attached Lease together with interest from the date of judgment and
costs.
PETER A. LESSER, ESQUIRE
Attorney for Plaintiff
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AFFIDAVIT OF BUSINESS TRANSACTION
STATE OF NEW YORK
:SS.
08 - (01 y# Ci v 6ITQr#.-
COUNTY OF NASSAU
BRENDA J. WALKER, being duly sworn according to law, deposes and says that
she is the Vice-President of Plaintiff, CEDAR-PENNSBORO, LLC; that she is authorized to make
this Affidavit on behalf of Plaintiff; and that the transaction upon which the Judgment is being
entered was a business transaction.
Sworn to and Subsc 'bed
before me this ay
of , 2008.
Notary Publ
AMY WEISS
Notary Public, State of New York
No. 30-4613219
Qualified in Nassau County
Commission Expires Oct. 31, iv
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AFFIDAVIT
STATE OF NEW YORK
COUNTY OF NASSAU
:SS.
09- (0140 alvil Te r,
BRENDA J. WALKER, being duly sworn according to law, deposes and says that
she is the Vice-President of Plaintiff, CEDAR-PENNSBORO, LLC; that she is authorized to make
this Affidavit on behalf of Plaintiff; and hereby states that the agreement at issue is not a retail sales
agreement or contract.
Sworn to and Subs__c} "b al
before me this ay
of 0, 2008.
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Notary Public
AMY WEISS
Notary Public, State of New York
No. 304613219
Qualified in Nassau County
Commission Expires Oct. 31, 2v2
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AFFIDAVIT
a8-1olgo Civil Te-p,
STATE OF NEW YORK
:SS.
COUNTY OF NASSAU
BRENDA J. WALKER, being duly sworn according to law, deposes and says that
she is the Vice-President of Plaintiff, CEDAR-PENNSBORO, LLC; that she is authorized to
make this Affidavit on behalf of Plaintiff; and that the Judgment being sought herein is not being
entered against a natural person in connection with a consumer credit transaction.
B NDA W KER
Sworn to and Subs bed
before me this Subs 'bed.
of , 2008.
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Notary Putbe
AMY WEISS
Notary Public, State of New York
No. 30-013219
Qualified in Nassau County
Commission Expires Oct. 31, 2021
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AFFIDAVITNERIFICATION
D8 - !o l 4 O Q tdi l 1`erp--
STATE OF NEW YORK
COUNTY OF NASSAU
:SS.
BRENDA J. WALKER, being duly sworn according to law, deposes and says that
she is the Vice-President of Plaintiff, CEDAR-PENNSBORO, LLC; that she is authorized to
make this Affidavit on behalf of Plaintiff; and hereby verifies that the facts set forth in the
foregoing Complaint in Confession of Judgment are true and correct to the best of her knowledge,
information and belief. Affiant understands that the statements in the foregoing Complaint in
Confession of Judgment are made subject to the penalties of 18 Pa. CSA Section 4904 relating
to unsworn falsification to authorities. The Exhibits attached to the Complaint are true and
correct copies of the original Lease and documents.
Sworn to and Subsc 'bed
before me this y
of , 2008.
Notary Pu c
AMY WEISS
Notary Public, State of New York
No. 30.4613219
Qualified in Nassau County ?q
Commission ExPlrec Oot. 31 ,20o
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AVERMENT OF DEFAULT
08- Co 4D e:tvi) Tl° P-
STATE OF NEW YORK
:SS.
COUNTY OF NASSAU
BRENDA J. WALKER being duly sworn according to law, deposes and says that
she is the Vice-President of Plaintiff, CEDAR-PENNSBORO, LLC; and that she is authorized to
make this Affidavit on behalf of Plaintiff:
On or about June 15, 2005, the predecessor of Plaintiff, Defendant and Jennifer
Scott entered into a Lease for the rental approximately 1,710 square feet of commercial space
at the Pennsboro Commons, 378 East Penn Drive, Enola, PA 17025. The term of the Lease
was for an initial period of five (5) years which will expire on July 31, 2010. A true and
correct copy of said Lease is attached hereto, marked as Exhibit "A" and made a part hereof.
Pursuant to the Lease, Defendant is responsible for the payment of monthly rent in
the amount of $2,273.33 plus Common Area Maintenance charges, Real Estate Taxes and
insurance.
Defendant is in default of the terms of the Lease.
Defendant has failed to pay rent and proper charges as of September 22,
2008 in the amount of $40,459.30, as set forth on the Tenant Ledger attached as Exhibit "B".
Despite repeated demands; Defendant has refused and continues to refuse to pay
any or all of the remaining balance due to Plaintiff.
Defendant is also in default of the Lease for prematurely vacating the premises in
January 2008.
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By letter to Defendant dated July 8, 2008, Plaintiff provided a notice of default to
Defendant. A true and correct copy of said letter is attached hereto, made a part hereof and
marked as Exhibit "C".
The balance due pursuant to the Lease is $44,505.23 which represents unpaid rent
and proper charges specifically set forth in Paragraph 5 above in the amount of $40,459.30
together with an attorneys' commission of 10% in the amount of $4,045.93.
Accordingly, as provided by Section 18.01(1) of the Lease Agreement, Defendant
is responsible for the payment of accelerated rent and additional rent for the remainder of the
lease term discounted to present value at the rate of 6% per annum. for the period commencing
October 1, 2008 through July 31, 2010. Accelerated rent and additional rent is calculated in the
amount. of $46,093.36.
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Sworn to and Subscribed
before me this p2euay
of2008.
Notary P 1ic
AMY WEISS
Notary Public, State of New York
No. 30-4613219
Qualified in Nassau County
Commission Expires Oct. 31, 2DA
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CERTIFICATION OF ADDRESSES
STATE OF NEW YORK
:SS.
COUNTY OF NASSAU
BRENDA J. WALKER, being duly sworn according to law, deposes and says that
she is the Vice-President of Plaintiff, CEDAR-PENNSBORO, LLC; and that she is authorized to
make the following Affidavit on behalf of Plaintiff:
Affiant certifies that the present addresses of Defendant are 43 Lee Ann Court,
Enola, PA 17025-1948 and 2240 Dewey Lane, Enola, PA 17025 and the business address of
judgment creditor Plaintiff is 44 South Bayles Avenue, Suite 304, Port Washington, NY 11050.
B IA:?
_J. W
KE
Sworn to and Subscribed
before me this Q;&day
of , 2008.
Notary Pu i
AMY WEISS
Notary Public, State of New York
No.30-4613219
Qualified in Nassau County r?G
Commission Expires Oct. 31, 2D
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AFFIDAVIT OF INCOME
STATE OF NEW YORK
COUNTY OF NASSAU
:SS.
BRENDA J. WALKER, being duly sworn according to law, deposes and says that
she is the Vice-President of Plaintiff, CEDAR-PENNSBORO, LLC; that she is authorized to
make this Affidavit on behalf Plaintiff; and that the income of Defendant is in excess of
$10,000.00 per year.
Affiant also certifies that the addresses of Defendant are 43 Lee Ann Court, Enola,
PA 17025-1948 and 2240 Dewey Lane, Enola, PA 17025 and that the address of the judgment
creditor Plaintiff is 44 South Bayles Avenue, Suite 304, Port Washington, NY 11050.
Sworn to and Subscribed
before me this day
of 2008.
Notary Pu 1 c
AMY WEiSS
Notary Public. State of New York
No.30,A Mlg
! it?lified in Nassau County G
comrnission Expires Oct. 31, 20Q I
B A J. W KER
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AFFIDAVIT OF NON-MILITARY SERVICE M _ (014 L? W i l'1iw-
STATE OF NEW YORK
COUNTY OF NASSAU
:SS.
BRENDA J. WALKER being duly sworn according to law, deposes and says that
she is the Vice-President of Plaintiff, CEDAR-PENNSBORO, LLC; and that she is authorized to
make this Affidavit on behalf of Plaintiff; and that Defendant, TERRI MAT-MEWS, is not in the
military Service of the United States, nor any State or Territory thereof or its allies as defined in the
Soldiers' and Sailors' Civil Relief Act of 1940 and the amendments thereto.
Affant also certifies that the addresses of Defendant are 43 Lee Ann Court, Enola
PA 17025-1948 and 2240 Dewy Lane, Enola, PA 17025; and that the address of the judgment
creditor Plaintiff is 44 South Bayles Avenue, Suite 304, Port Washington, NY 11050.
Sworn to and Subscribed
before me this )
,? day
of , 2008.
Notary 'Pic
AMY WEISS
Notary Public, State of New York
No. 30-4513219
Qualified in Nassau County
Cornm3sicn Expires Oct. 31, 20
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BRENDA J. WALkER
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SIRLIN GALLOGLY & LESSER, P.C.
1529 Walnut Street, Suite 600
Philadelphia, PA 19102
(215) 8649700
By: Peter A. Lesser, Esquire
Identification No. 59433
CEDAR-PENNSBORO COMMONS, LP
Successor in interest to
CEDAR-PENNSBORO, LLC
Agent: Cedar Shopping Centers
Partnership, L. P.
44 South Bayles Avenue
Port Washington, NY 11050
V.
TERRI MATTHEWS individually and
d/b/a CALIFORNIA FUSION
43 Lee Ann Court
Enola, PA 17025-1948
And
2240 Dewey Lane
Enola, PA 17025
Attorneys for Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. a - I61 qo
Notice of Defendant' s Rights
To: Terri Matthews individually and d/b/a
California Fusion
43 Lee Ann Court
Enola, PA 17025-1948
And
2240 Dewey Lane
Enola, PA 17025
CI vi
A judgment in the amount of $90,598.59 has been entered against you and in
favor of the plaintiff without any prior notice or hearing based on a confession of judgment
contained in a written agreement or other paper allegedly signed by you. The Court has issued
a Writ of Execution which directs the Sheriff to take your money or other property owned by
you to pay the judgment.
You have the right to seek to Strike the judgment:
1. If you did not voluntarily, intelligently and knowingly give up your
constitutional right to notice and hearing prior to the entry of judgment or if you have defenses
r
OFFICE OF THE PROTHONOTARY
COURT OF COMMON PLEAS
(!"iE R J A K)b C ouA-r"?
PROTHONOTARY-
Terri Matthews individually and
To: d/b/a California Fusion
Cedar-Pennsboro Commons LLC successor in
interest to
Cedar-Pennsboro LLC By Its Agent: Cedar Shopping
Centers Partnership LP
44 South Bayles Avenue
Port Washington NY 11050
V.
Terri Matthews individually and d/b/a California
Fusion
43 Lee Ann Court, Enola PA 17025
and 2240 Dewey Lane, Enola PA 17025
NOTICE
COURT OF COMMON PLEAS
L?M$E2LAND ?u-1VT?
No
Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a
JUDGMENT W CONFESSION has been entered against you in the above proceeding and
that enclosed herewith is a copy of all the (record) documents filed in support of the said
judgment.
IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE CALL:
ATTORNEY Peter A. Lesser, Esquire
Esquire
(Insert Attorney's Name)
at this telephone number: f215) 864-9700.
Prothonotary
EXHIBIT "A"
LEASE AGREEMENT
PENNSBORO COMMONS SHOPMG CENTER
3
•PPING
TER: Pennsboro Commons Shopping Center
Cumberland County, Pennsylvania
NER: William F. Rothman, Charles F. Schubert & Samuel L. Reed, Co-Partners, t/d/b/a
Rothman, Schubert & Reed, a Pennsylvania General Partnership
[ANT: Terri Matthews and Jennifer Scott t/d/b/a California Fusion:
ANT'S ADDRESS: 43 Lee Ann Court, Enola PA 17025
dANTS PHONE NUMBER: 856-8521 or 350-2829
4ANTS
kDE NAME: California Fusion
%SED
BESES: The Premises outlined in red on Exhibit A containing approximately 1710 square feet of
Gross Leasable Area and identified as Block H, Section 4, with an address of 378 East
Pennsboro Drive, Enola, PA 17025, being 28.5' x 60'.
ASED TERM:
NEWAL TERM:
Five (5) Years.
Two (2) -- Five (5) Year options.
4
Owner makes no guarantees or wafrauties that the condition of the Leased Space
as provided for my Owner under Owner's Work, Exhibit B, and turned over to
Tenant shalt be fit for Tenant's intended use. Tenant shall have the sole obligation
of determining and providing for such additional services to the Leased Premises
not otherwise provided for in Owner's Work, Exhibit B, including but not limited
to any necessary additional heating and HVAC system, in order that Tenant may
complete the Leased Premises for its intended use.
JAL
AUM RENT: Tenant shall pay to Owner, as Annual Minimum Rent on the first day of every month, in
advance, at $16.00 per square foot, the annual sum of $27,280.00 ($2,273.33-per month)
The Annual Minimum Rent for the renewal terms, if any, shall be:
1" Renewal Term: payable on the first day -of every month, in advance, at $17.00 per
square foot, $28,985.00 ($2,415.41 per month).
2od Renewal Term: payable on the first day of every month, in advance, at $18.00 per
square foot, $30,690.00 ($2,557.50 per month)
TENTAGE
N/A%
4KPOINT: SN/A
CAL ESTIMATED
[MON FACIL=S
I BUTTON FOR
ANT: $2,557.50 per calendar year ($213.12 per month) (subject to adjustment as set forth in
Article VII of this Lease) .,:
5
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TAL ESTIMATED
: CHARGE FOR
ANT: $1,705.00 per tax year ($142.08 per month) (subject to adjustment as set forth in Article
VI of this Lease
TAL ESTIMATED
-FRANCE CHARGE
TENANT: $426.25 per calendar year ($35.52 per month) (subject to adjustment as set forth in
Article X of this Lease)
'URITYDEPOSIT: Upon execution of this Lease, Tenant shalt deposit-the sum of $2,27333 with Owner to
secure the performance of the obligations of Tenant herein contained.
Section A-2. Effect of Reference to a Basic Lease Provision.
Each reference in this. Lease to-any of the Basic •Lease Provisions contained in Section A-1 shall be
deemed to.incoiporate all of the terms provided under each such Basic Lease Provision.
Section A-3,-.EnujheratiQ1i of Exhibits.
The Exhibits enumerated in this Section and attached to this Lease are hereby.incorporated in this Lease
by reference and each party agrees to perform all obligations binding upon it under such Exhibits.
Exhibit A Site Plan
Exhibit AA Legal Description of Owner's Tract
Exhibit B Owner's Work
Exhibit C Rules and-Regulations
Exhibit D Guaranty of Lease
Exhibit E Consumer Notice
RECITALS
Owner owns fee title to certain real property described on Exhibit A-1. The real property described on
Exhibit A-1 (as the same may be expanded or reduced as contemplated in this Lease) is herein called "Owner's
Tract." The term "Shopping Center" shall mean Owner's Tract, together with the buildings and other
improvements thereon from time to time.
..ARTICLE I - GRANT AND TERM
Section I.01. Leased Premises and Common Areas.
Owner leases to Tenant and Tenant rents from Owner those premises located in the Shopping Center and
described as the "Leased Premises" in Section A-1 of the Basic Lease Provisions;.together with the appurtenances
specifically herein granted. The use by Tenant of the Leased Premises shall include the non-exclusive -use of the
C?" 1 6
The term of. this Least and Tenant's obligation to pay rent shall, subject to the provisions of Section
23.02, commence upon the earlier -of the following dates (the "Commencement Date"): (i) the. date on which
Tenant shall open the Leased Premises for business with the public, or (ii) the date of expiration of the "Period
For Completion of Tenant's Work" designated in Section A-1 of the Basic Lease Provisions, but no later than
2005. The tern of this Lease shall expire, unless sooner.terniinated as in this Lease provided, on the last
day of the last.-Leased Year" (as defined in Section 23.04) provided under "Lease Term" in Section A-1 of the
Basic Lease Provisions. In brder to extend the Leased Term as provided under "Renewal Term" in Section A-1
of the Basic Lease Provisions, 'tenant shall give Owner ninety (90) days written notice of its intention to renew
the Leased Term prior to the end of the then current term at. the amount designated for the renewal terms
provided under Annual Minimum Rent in Section A-1 of the Basic Lease Provision.
Section 1.03.. O Ii¢ations Prior to Commencement of Term
Tenant shall perform all of its obligations under this Lease (except its obligations to pay rent and other
charges) from.the date upon which the Leased. Premises are -first made available to Tenant which shall be on or
bef0r9W, 2005 iintil.the Commencement Date.
Section 1A4. Owner, Finandine ContingMcv. INTENTION
ALLY ON ITED
Section 2.01. Annua] Minimum Rent.
Tenant shall pay to Owner, without any-prior demand, deduction or setoff, the "Annual Minimum Rent"
specified in Section A-1 of the Basic Lease Provisions, in equal monthly installments on or before the first day of
each calendar month in advance. Annual Minimum Rent for a fractional calendar month shall be prorated.
Section 2.02. Percentage Rent. INTENTIONALLY ONU=
Section 2.03. Gross Receipts Defined INTENTIONALLY OMITTED
Section 2.04. Additional Rent
Tenant shall pay, upon demand as additional rent, all charges required to be paid by Tenant under this
Lease, whether or not the same are designated "additional rent".
Section 2.05. Interest.
If Tenant shall fails to pay within five (5) days from when the same is due and payable, any rent or any
additional rent, Tenant shall, upon demand, pay Owner (i) a late charge of $100.00 for each installment of
Annual Minimum Rent or.. other 'charge past due-. and (ii) interest at the "Interest Rate" (as defined in.Sectiou -.
23.04) on the arrearages from the due date thereof until paid
7 J 1?l
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ARTICLE M.- RECORDS: REPORTS AND AUDIT
Section 3.01. Tenant's Records; Re orts and Audit
Tenant agrees to prepare and keep true and complete records and accounts for at least 24 months affter
each Lease year during the term of this Lease of all final records including but not limited to income statement,
balance sheet and financial statement for each such Lease Year in accordance with generally accepted accounting
Principles consistently followed. Tenant shall provide such financial records to Owner within 15 days of
Owner's written request for the purpose of satisfying a current or future mortgagee or purchaser in the event that
-Owner would refinance or sell the Shopping Center and such mortgagee or purchaser would request such
information.
ARTICLE IV - CO STRUC'TION ALTERATIONS ADDITIONS AND RELOCATIONS OF
AUYROVFMENTS
Section 4.01. Owners and Tenant's-Work
Exhi. (A) - Owner. and Tenant shall construct the Leased Premises in accordance with the provisions of
bits B. . All of Tenant's Work with respect to utility installations shall also be subject to approval, -when
applicable, by the utility company furnishing the 'service.
(B) Owner or an authorized utility company shall have the right to construct, maintain, repair,
replace and relocate utility lines, pipes, conduits and duct work where necessary or desirable, through atfia space,
column space or other similar areas of the Leased Premises, and to repair, alter, replace or remove. the sauce, all in
a manner which does not interfere unnecessarily with Tenant's use thereof, and Tenant shall not be entitled to an
.
abatement or reduction of rent or to claim an actual or constructive eviction by reason thereof. "Owner's Work"
(hereinafter defined in Exhibit B) shall be deemed approved by Tenant in all respects except.for items of Owner's
Work which are not completed or do not conform to Exlubit B and as to which Tenant shall have given notice to
Owner within 30 days after the commencement of the term.
Section 4.02. Chan es and Additions to the Sho in Center.
Notwithstanding anything set forth in this Lease to the contrary, it is agreed that Owner reserves the
right, without invalidating this Lease or modifying any provision thereof except Exhibit
before, during or after the initial construction thereof, (i) to make alterations, changes, de eA, at time either
tionsnand additions
(including additional stories) to the buildings, Common Facilities and other improvements in the Shopping
Center (excluding the interior of the Leased Premises); (a) to add and permit to be added additional land(s) to the
Shopping Center and to exclude lands therefrom; (iii) to construct and to permit to be constructed additional
buildings and other improvements in the Shopping Center; (iv) to remove or relocate the whole or any part of any
building or other improvement in the Shopping Center; and (v) to relocate the premises leased to any other
tenant PROVIDED, HOWEVER, the foregoing shall not be construed as permitting Owner to change the
location of the Leased Premises.
ARTICLE V -CONDUCT OF BUSINESS HY TENANT .
Section 5.01. Use of Premises.
e-
Section 512. Operation of Business.
Tenant shall, subject to the -provisions of Section 22.02, (i) open the Leased Premises by the date
provided in Section 1.02. and thereafter continuously operate all of the Leased Premises in good faith during the
term so as to produce the maximum profitable and practical Gross Receipts which may be produced by such
manner of operation;'and (ii) keep the Leased Premises open for business and the signs therefore lighted each day
from 10:00 a.m. until 9:00 p.m., Monday through Sunday (local time then current). If Tenant, defaults in respect
to any of the foregoing covenants then Tenant shall, in recognition of the difficulty or impossibility of
determining Owner's damages, pay to Owner, upon demand, as liquidated damages (and not as a penalty) and in .
addition to the Annual Minimum Rent and other charges payable under this Lease, a separate charge equal to
11365 of the then applicable Annual Minimum Rent for each day, or part thereof, Tenant fails to open or operate
the Leased Premises in accordance with the provisions ofthis Section.
Section 5.03. Radius Restriction INTENTIONALLY OMITTED
Section 5.04. Parking..
Tenant and employees of Tenant shall park their automobiles in the side and rear parking areas
designated by Owner for employees. Owner shall provide appropriate lighting for said area. Owner shall be
entitled to tow improperly parked vehicles at the automobile owner's expense and without notice.
ARTICLE VI - TAXES
Section 6.01. Taxes.
(A) The term "Taxes" shall mean the aggregate of the real estate taxes, assessments and • other
governmental charges and levies, general and special, ordinary and extraordinary, .foreseen and unforeseen, of
any kind or nature whatsoever (including assessments for public improvements or benefits and interest on unpaid
installments thereof) which may be levied, assessed or imposed or become liens upon the Shopping Center, or
which arise out of the use, occupancy or possession of the Shopping Center (land, buildings and permanent-
. rovements) from time to time. The term "Taxes" shall not, however, include inheritance, estate, succession,
transfer, gift, franchise, corporation, income or profit tax imposed upon Owner, nor penalties imposed upon
Owner for Owner's delinquent payment of the. Taxes; PROVIDED, HOWEVER, that if at any time during the
term of this Lease the methods of taxation prevailing at the commencement of the term of this Lease shall be
altered so.that in addition to or in lieu of or as a substitute for the whole or any part of the Taxes now levied,
assessed or imposed on real estate as such there shall be levied, assessed or imposed (i) a tax on the rents
received from the Shopping Center, or (ii) a license fee measured by the.rents receivable by Owner from the
Shopping Center; or (iii) a tax or license fee imposed upon Owner which is otherwise measured by or based in
whole or in part upon the Shopping Center or any portion thereof, then such tax or fee shall be included in the
computation of Taxes, computed as if the amount of such tax or fee so payable were that part due if the Shopping
Center were the only property of Owner subject thereto.
(B) The term "Tax Year" shall mean the 12 month period established as the real estate tax year'by the
taxing authorities having jurisdiction over the Shopping Center.
9
(D) . Tenant's Tax Charge shall be paid to Owner in monthly installments (as estimated by Owner) in
advance on the first day of each calendar month during such Tax Year. Owner's estimate of Tenant's Tax Charge
for the Tax Year in which this Lease commences is set forth in Section A-1 of the Basic Lease Provisions.
Within 90 days after the end of each Tax Year, Owner shall deliver a copy to Tenant of all tax bills for such Tax
Year and certify to Tenant the amount of Tenant's Tax Charge and Owner and Tenant shall then adjust any
overpayment or underpayment by Tenant of Tenant's Tax Charge for such Tax Year. Any payment required in
connection with an overpayment or underpayment shall be due within thirty (30) days. Owner's failure to provide
such information within the 90 days shall in no way excuse the Tenant from its obligations to pay any
underpayment or constitute a waiver of Owner's right to bill and collect -such' underpayment from Tenant in
accordance with this paragraph.
• - (E) Tenant shall pay- (or reimburse Owner upon demand if the -same are levied against Owner or- the
Shopping Center), before delinquency, any and all taxes, assessments; license fees and public charges, of
whatever kind-, or- riatuce, levied Ur. assessed during- the -term by any governmental authority 'against Tenant's
business in the Leased Premises and the fixtures, f=urniture, appliances and any other personal property.-therein.
(F) Owner shall have the sole, absolute. and unrestricted right (but not the obligation) to contest
and/or compromise the validity or amount of any Tax by appropriate proceedings. Owner shall have the right
(but not the obligation), if permitted by law, to make installment payments of any assessments levied against the
Shopping Center; and in such event, Tenant's share of the Taxes shall be computed upon the installments thereon
paid by Owner-in-each Tax Year.
ARTICLE VII -COST OF MAIM fZMANCE AND CONTROL OF COMMON FACII TTIES
Section 7.01. Common' Facilities Contnbution
In each calendar year during the term, Tenant shall pay to Owner an amount (the "Common Facilities
Contribution") equal to a proportion of the "Operating Cost" (as defined in.Section 7.02) of the Common
Facilities ("Tenant's Common Facilities Contribution"). Tenant's Common Facilities Contribution for each
calendar year during the term shall be that portion of the Operating Cost for such calendar year equal to the
product obtained by multiplying the Operating Cost for such calendar year by Tenant's Percentage Share
(hereinafter defined in Section 23.04) as of the first day of such calendar year.
Section 7.02. Oueratina Cost and Common Facilities Defined
(A) The term "Operative Cost" shall mean the total cost (other than the cost properly chargeable to
capital account, except as herein specifically provided) and expense incurred in. operating, maintaining,
equipping, inspecting, protecting and repairing the Common Facilities, including without limitation, the cost or
expense of, or incurred in connection with or reasonably attributable to: water, gas, electricity.and other utilities;
gardening and landscaping (including planting and replacing flowers and shrubs); cleaning; fire protection
(including installation and maintenance of-an ADT or. similar. type system), if any, fees for required licenses; .
personal property taxes; all Taxes levied, 'assessed or imposed or which may become a lien on the Common
Facilities or which may arise out of the use thereof, line painting; the repair and maintenance of the roof and
10
finished ceilm ncludm ]i htin o all Sho m Center cano ies : o eratm of ;loud ets :and 'other
g g° 8 PP. g P P g speak
equipment supp (! lying music; sanitary control; security services (if ansewer service charges; removal of ice,.
snow, trash, i bbish, debris, garbage and other refuse (including ice and snow removal immediately in front of
Tenant's storefront); depreciation on machinery and equipment used in such maintenance;' resurfacing and
restriping of parking areas; repairing the roof of the Shopping Center, and personnel to provide and supervise
such services (including wages, unemployment and social security taxes and the cost of uniforms for such
personnel); plus an amount equal to ten percent (I0%) of the total of all of the foregoing as an agreed upon
reimbursement covering the administrative costs to be incurred by Owner in connection with the operation of the
Common Facilities.
.(B) The term OOperating Cost" shall also include any municipal improvements required by the local
municipality to be made to the Common Facilities including but not limited to traffic signals, stop signs, and road
repair. Tenant's Common -Facility Contribution for any improvements or repairs required under this Section
7.02(B) shall be obtained by multiplying the cost of the municipal improvements or repairs made to the Common
Facilities by Tenant's Percentage Share.
(C) The. term "Common Facilities" shall mean all areas, space, equipment and special services in or
serving the Shopping Center, provided for the common or joint use and benefit of Owner, the occupants of the
Shopping Center, and. their employees, ' agents, servants, customers and other invitees, including, without
limitation: any open pedestrian malls; parking areas and parking lot improvements; access roads; driveways;
retaining walls; exterior. boundary walls and fences; water, sanitary and storm sewer (including any off-site
Ksewer lines which Owner -is required to maintain), gas, electric, telephone and other utility lines, systems,
conduits and facilities to the perimeter walls of any building (even though intended for the use of only one or a
limited number of occupants) and those . within a building serving more than one premises, and any of the
foregoing' which serve the Common Facilities; on or off-site water detention and retention ponds, facilities and-
systems; on-site trash compactor; plantings; landscaped areas; truck service ways or tunnels; loading dock areas
and facilities; the roof and finished ceiling (including lighting) of all Shopping Center canopies; courts; ramps;
sidewalks; comfort and first aid stations; washrooms; parcel pick-up stations; any Shopping Center pylon sign;
drinking fountains; vertical transportation equipment (including elevators and escalators);. auditoriums;
community centers; bus stations; and the facilities appurtenant to each and all of the foregoing. _
Section .•7.03. Payment
(A) Tenant's Common Facilities Contribution shall be paid in monthly installments on the first day of
each calendar month during the term in advance, in an amount reasonably estimated by Owner. Owner's estimate
of Tenant's Common Facilities Contribution for the calendar year in which this Lease commences is set forth in -
Section A-1 of the Basic Lease Provisions. Within 90 days after the end of each calendar year during the term,
Owner shall furnish Tenant with a statement summarizing the actual Operating Cost for such calendar year and
.setting forth the method by which Tenant's Common Facilities contribution was determined as herein provided,
and Owner and Tenant shall then adjust any overpayment or underpayment by Tenant of Tenant's Common
Facilities Contribution for such calendar year with any resultant payment to be due within thirty (30) days.
Owner's failure to provide such statement within the 90 days shall in no way excuse Tenant from its obligations
to pay any underpayment or constitute a waiver of Owner's obligations to bill and collect such underpayment
from Tenant in accordance with this Paragraph.- Any claim by Tenant for revision of any statement submitted by
Owner hereunder for any such calendar year which is not made within 90 days after receipt of such statement,
shall be deemed waived and discharged. For the calendar year in which this Lease commences or terminates,
Tenant's Common Facilities Contribution shall be prorated.
(B) Any municipal improvements or repairs as contemplated in Section 7.02(B) shall be paid within
thirty (30) days of Tenant's receipt from Owner of a payment statement. As such municipal improvements are
ll
Notwithstanding anything set out in this Lease to the contrary, it is agreed that (i) -all Common Facilities
shall be subject to the exclusive control and management of Owner, and Owner may permit the owners or
occupants of land located outside the Shopping Center and their invitees to use the Common Facilities; 01)
Owner shall have the right to temporarily close all or any portion of-the Common Facilities (including Parking
areas);. ir Owner shall be required to keep the parldng areas lighted from dusk to dawn and.not during any
daylight hours, and (iv) Owner shall have the right to do and perform such other acts.in and to the Common
Facilities as Owner shall determine to be advisable with a view to the improvement -of the convenience and use
thereof by tenants of the Shopping Center and their customers, including the right to permit, in Owner's sole
discretion, promotions in and decorations of the sidewalks and parldng areas; PROV]pED, HO
shall-maintain the Common Facilities in the Shopping Center in reasonably good order and,re Owner
mg pair, and shall keep
the par]ang area and other Common Facilities in the Shopping Center reasonably free of snow, ice and debris
and adequately lighted, but these obligations shall not inure to the benefit of any third party nor. confer upon any
third party any rights or.remedies in the event of Owner's failure to perform such obligations.
ARTICLE ViII -ALTERATIONS SIGNS, SURRENDER TENAN T LIENS
Section 8.01. Alterations._
Tenant shall not make or cause to be made any alterations, additions or improvements in or to the Leased
Premises without submitting to Owner plans and specifications therefor and obtaining Owners consent thereto.
Section 8 02. -Surrender, Title to improvements: Removal and Restorati on b Tenant.
(A) On the last day of the term or on the sooner termination thereof, Tenant shall (i) subject to the
provisions of Articles XVI and XVIL peaceably surrender the Leased Premises broom clean and in good order,
condition and repair--except for reasonable wear and tear, (ii) at its expense remove.from the Leased-Premises the
signs; moveable furniture and trade fixtures (including, without limitation, molly-bolts, -screws and other items
inserted into the walls of the Leased Premises)' which were furnished and installed by Tenant at Tenant's sole
expense ("Tenant's Prouertv!') and, if requested by Owner, remove, at Tenant's expense, the carpeting in the
Leased Premises, and (iii) deliver to Owner a certificate of inspection from a reputable mechanical systems
contractor that the heating, ventilating, air conditioning, electrical and plumbing systems are in good order,
condition and repair. Any damage to the Leased Premises caused by Tenant in the removal of Tenant's Property
shall be repaired by Tenant at Tenant's expense (including, without limitation, the patching and sanding of 'Molly-
bolt holes and other similar type holes in the walls of the Leased Premises).
(B) Except for Tenant's property, the title to all alterations, additions, improvements, repairs,
decorations, non-trade fixtures, equipment (including heating and air conditioning equipment) and. appurtenances
attached to or built into the Leased Premises which shall have been made, furnished or installed by or at the
expense of either Owner or Tenant in or upon the Leased Premises shall become upon the installation thereof and
remain a part of the Leased Premises without disturbance or charge, except that Owner may elect to require
Tenant, at Tenant's expense, to remove any or all of such alterations, additions, improvements, non-trade fixtures,
equipment, and/or appurtenances, and. Tenant shall upon such removal restore the Leased'-Premises to good
condition, subject to ordinary wear and tear.
12
(A) Before Tenant permits any work, labor, services or materials to be performed for or furnished to
the Leased Premises, Tenant shall require any party with whom Tenant contracts.to perform said work to Tenant
or anyone holding all or airy part of the Leased Premises under Tenant to file a stipulation against liens pursuant
to § 1402 of the Pennsylvania.Mechanics' Lien Law of 1963 (49 P.S. § 1401, et seg.).
(B) Tenant shall not suffer any mechanics' or materialmen's lien to be filled against the Leased
Premises or the Shopping Center by reason of work, labor, services or materials performed or furnished to Tenant
or anyone. holding all or any part of the Leased Premises under Tenant. If any such lien shall at any time be filed
as aforesaid, Tenant may contest the same in good faith but notwithstanding such contest, Tenant shall, within 15
days after the filing thereof, cause such lien to be released of record by payment, bond, order of a court of
competent jurisdiction, or otherwise.
In the-event that Tenant fails to take the actions that are necessary to cause such lien to be released, then
the Owner shall have the right to•take whatever actions are necessary to have said liens released. In such event,'
Tenant aece's to 'reimburse the' Owner for 'all costs incurred by the Owner, including attorneys' fees. A failure by
the Tenant to reimburse the Owner these costs shall be a default by Tenant pursuant to Article XVIII. .
. r .
(Cl Tenant shall • not create or suffer to be created a security interest or other lien against any
improvements, additions or other constmetion made by Tenant in or to the Leased Premises or against any
equipment or fixtures installed by Tenant therein (other than Tenant's Property):
Section,8.04. Tenant's Signs
Tenant shall not install any sign, billboard, marquee, awping, placard, lettering, advertising matter or .
other thing of any kind, whether permanent or temporary, on the exterior of the Leased Premises, or in or on any
glass window, window showcase, or door of the Leased Premises until the same has been approved by the Owper-
in writing. Owner has the right to control the size, location, design and materials of the same for the purpose of
establishing and maintaining the appearance of the Shopping Center.
ART14CLF IX -MAINTENANCE OF LEASED PREMISES • RULES AND REGULATTONS
Section 9.01. Maintenance by Tenant
Subject to the provisions of Articles XVI and XVII, Tenant shall, at its sole cost, keep and maintain the
interior of the Leased Premises [together with exterior (1) feature lighting, (ii) windows, including sashes, (iii)
heating, ventilating and air conditioning equipment and sewer and other lines serving the Leased Premises
exclusively, (iv) doors, including frames, locks, hardware and track, (v) store front of the Leased Premises, and
,(vi) signs and other equipment referred to in Section 8.04), including without limitation, the partitions, ceiling,
interior portions of exterior walls, floor covering therein, and the fixtures, equipment, machinery, appliances and
utility lines therein and. appurtenances thereof [such as, but not limited to, lighting. fixtures and lenses and such
fixtures, equipment, machinery controls, appliances and utility lines and appurtenances thereof, as are used for, in
connection with or which-are a part of the electrical, plumbing, heating, air conditioning, ventilating, sprinkler, or
any other mechanical systems in or serving the Leased Premises], in conformity with all rules and regulations of
Owner's hazard insurer, neat and clean and in .good order, condition; Aaintenance and repair. Tenant shall also at
its cost procure and maintain in the Leased premises all safety appliances required by Owner's hazard insurer to
be maintained therein. Tenant shall replace any and all plate, window and other glass (structural or otherwise) in,
13
.C-
:..............
........ :.'..:.::•.: i.:?:,:ri._.:.:'::.: is ay:..,:..=+:.:1.:,.
on or about the Leased Premmses, which maybe broken of destroyed, with g lass o the same or similar quell ` .
Before undertaking repairs to the Leased Premises (other.than minorInterior"non4tructural repairs), Tenant shall
first obtain Owners approval of the plans and specifications therefor, which approval is not to be unreasonably
withheld. Owner shall authorize one (1) heating and air conditioning contractor who shall provide a complete
service. and maintenanee contract to Tenant who shall be the named
eces contract for .the changing of
filters on a quarterly basis or such other period of time as Owner determines non tile
HVAC. contractor and the quarterly inspection or such otherY after consulting with the
period with. the HVAC contractor, of the HVAC equipmenserving the Leased Premist ems, including a written
report of the condition tliere of to be provided to Owner and Tenant, the periodic oiling of the equipment where
required, the tightening of belts, the filling of pitch pans and the sealing of water leaks, among other things. The
service and maintenance contract and its related costs shall be the sole cost and expense of the Tenant. The
existence of a service cgntraat -with an Owner approved vendor shall not relieve Tenant of its obligations to
maintain and repair such equipment .as above provided. All applicable warranties with regard to the HVAC
system shall be applied first to the extent such warranty is available as determined by the manufacturer and the
terms of the warranty. .
Section 9 02 M tenanea by Owner.
Subject to the provisions of Articles XVI and XVIl• and to the ongations-of Tenant under, the provisions
of Sections 9.01, the foundations,. roof (excluding interior ceilings), and exterior portions of the exterior walls
(excluding store front) of the Leased Premises shall be 'maintained by Owner at its expense in good order, .
condition, maintenance and repair, • Owner shall not be deemed to have breached its obligation to -make the
repairs required of Owner as set forth in this Section, or to be liable for and
Owner fails to make 'the same within' a reasonable period (taking into consideration theltie o??m's
after receiving notice from Tenant of the need therefor. #YP fir involved)
. Section 9.03. Rules and Re lations.
Tenant agrees to comply with and observe the rules and regulations set forth in. Exhibit C. Owner
reserves the -right; • at any time, once or more often, -by notice to Tenant, to -amend or supplement- said rules and
regulations in a reasonable and non-discriminatory manner,
ARTICLE X -INSURANCE AND INDEMNITY -
Section 10,01. Liability Insurance
Tenant shall Iceep in force with an insurance company authorized to do business in the State in which the
Leased Premises are located and which has a Best's Insurance Guide Rating of A+:XV N
policy of comprehensive public liability -insurance, including damage, (Qualified Carrier"), a
Premises and the business operated by Tenant and any other occupant of, thLeased Premisest wlri h the
limits: of coverage shall not be- less than $2,000,000.00 (combined single limit bodily injury
damage). Such policy shall also insure the performance by Tenant of the indemnity agreement and forth in
Section 10.04. In addition to Tenant, the policy shall also name Owner and any other person, firm or corporation
designated by Owner and in privity with it, as an additional insured. Tenant shall continually
with a certificate of such insurance (the first of which shall be provided prior to commencment of Tenant s
Work), which shall provide that the insurer will give Owner at least 30 days' written notice prior to any
cancellation of, lapse or material change in the insurance. The insurance required in this Section.-and in Section
l.(}02'may be covered under a so-called "blanket" policy covering other stores of-Tenant and its affiliates.
Section 10-02. Fire Insurance.
14
-r
Tenant,shall keep in force-with a Qualified Carrier fire insurance (with extended coverage and vandalism
and malicious mischief coverage), water damage, sprinkler leakage and plate glass insurance, on the standard
forms, insuring all ' of Tenant's Prop" in the Leased Premises, and all betterments, additions, repairs,
improvements and alterations made to the Leased Premises by Tenant, and all plate glass windows, plate glass
doors and other plate glass in the Leased Premises, in an amount equal to 100% of the replacement cost thereof_
The proceeds of such insurance shall be. held in trust by Owner and Tenant for use in repairing and restoring the
items covered thereby .and the proceeds shall be made payable to Owner and Tenant and may only be disbursed
jointly by Owner and Teni tit. The foregoing policy of insurance shall be issued in favor of and in the names of
Owner and Tenant, as their interests may appear, and Tenant shall famish Owner and the holder of any mortgage
%
on the Leased Premises *ith a certificate evidencing such coverage, which certificate shall provide that the
insurance shall not be canceled, materially amended or allowed to lapse without thirty (30) days' prior written
notice theredfbeing given by the insurance carrier to Owner.
Section 10.03. Insurance on Buildings and Improvements in the Shopping Center.
(A) In each calendar year during the term, Tenant shall pay to Owner an amount (the "Tenant's
Insurance Contribution") equal to a proportion of the "Insurance Cost" (as defined in paragraph (B) of this
Section). Tenant's Insurance Contribution for each calendar year during the term shall be that portion of the
Insurance Costs for such calendar year equal to the product obtained by multiplying the Insurance Cost for such
calendar year;by Tenant's Percentage Share (hereinafter defined in Section 23.04) as of the first day -of such.
.,.calendar year: •
(B) -The -term ."Insurance Cost" shall mean the total cost of insuring the buildings and improvements
in the Shopping Center (including Common Facilities), including public liability, (including "umbrella
coverage"); workmen's compensation and hazard insurance (including rental value insurance, fire and extended
coverage [with vandalism and malicious mischief endorsement]; boiler and machinery, and all-risk policies), .
(C) Tenant's Insurance Contribution shall be paid in monthly installments on the first day of each
calendar month -during the term in advance, in an amount reasonably estimated by Owner.,. Owner's estimate of
Tenant's Insurance Contribution for the calendar year in which this Lease commences is set forth in Section A--1
of the Basic Lease-Provisions. Within 90 days after the end of each calendar year during the term, Owner shall
furnish Tenant with a statement summarizing the-actual Insurance Cost for such calendar year and setting forth
the method by which Tenant's Insurance Contribution was determined as herein provided and Owner and Tenant.
shall then adjust any overpayment or underpayment by Tenant of Tenant's Insurance Contribution for such -
calendar year with any resultant payment to be due within thirty (30) days. Any claim by Tenant for revision of
any statement submitted by Owner hereunder for any such calendar year, which claim is not made within 90 days
after receipt of such statement, shall be deemed waived and discharged.. For the calendar year in which this
Lease commences or terminates, Tenant's Insurance Contribution shall be prorated, if applicable, on the basis of a
360-day year.
(D) Tenant shall provide Owner on an annual basis with proof of all insurance policies which shall
provide that the insurer will give the Owner at least 30 days' written notice prior to any cancellation of, lapse of
or material change in the insurance.
Section 10.04. Business Liability insurance. Tenant shall keep in force with a Qualified Carrier, a policy to
cover business liability, including premises operations liability and business interruption liability, in which the
limits of coverage shall not -be less+than $1,000,00O.,.0O, single limit. In addition to Tenant,. the policy shall.-name,;t
Owner as an additional insured.' Tenant shall continually provide Owner with a certificate of such insurance,
15
• 1'.1:'1
c
Section 10.05. Indemnification
Tenant will, subject to the provisions of Section 10.06 indemnify, save
harmless -arid defend Owner and
its officers, agents and servants, from and against any and all claims, actions, liability and expense in connection
with loss of life, bodily injury and/or damage to property arising from or out of any occurrence in, upon or at the
Leased Premises, or the occupancy or use by Tenant, its agents, employees, servants, subtenants, licensees or
concessionaires, of the Leased premises or any part thereof, or outside the Leased Premises which is occasioned
wholly or in part by any willful or negligent act or omission of Tenant, its agents, employees, servants,
subtenants, licensees or concessionaires, unless the same be caused by the willful or he&gerrt act or omission of
Owner, its agents, employees or servants.
Section 10.06. Waiver of Subroaation• Limitation of Liability.
_
(A) Anything in this Lease to the contrary notwithstanding, it is agreed that each party (the
"Releasing Party") hereby releases the other (the "Released Party") from any liability which the Released Party
would, but for this Section 10.05, have had to the Releasing Paity during the term of this Lease, resulting from
the occurrence of any accident or occurrence or casualty (i) which is or would be covered by an "all-risk""policy
(irrespective of whether such coverage is being carried by the Releasing Party), or, (ii) covered by any other
casualty or property damage-insurance being carved by the Releasing Party at the time of such occurrence, which
accident, occurrence or casualty may have resulted in whole or in'part from any act or neglect of the Released
Party;` its officers, agents or employees; PROVIDED, HOWEVER, the release bereinabove set forth shall become
-inoperative and null and void if the Releasing Party wishes to place. the appropriate insurance with an insurance
company which (a) takes the position that the existence of such release vitiates. or would adversely affect any
policy so insuring the Releasing Party in a substantial manner and notice thereof is.given to the Released Party,
or(b) requires-the payment of a higher premium by reason of the existence of such release, unless in the latter
case the Released Party within 10 days after notice thereof from the Releasing Party pays such increase in
premium.
(B) Anything in this Lease to the contrary notwithstanding, it is agreed that Owner shall not be liable
for" any damage arising from the willful or negligent act-or omission of any other tenant or occupant of the
Shopping Center.
Section 10.07. Notice Tenant
Tenant shall within 24 hours after the occurrence of any casualty damage to or accidents in the Leased
Premises, give Owner notice.of such casualty damage or accident
ARTICLE M - UTILITIBT ES
Section 11.01 Utility Charees
Tenant shall contract in its own name for and promptly pay all charges for electricity, gas, water, sewer,
telephone and any other utility used or consumed in the Leased Premises to the concern furnishing the same. In
the-6vent that separate service arrangements cannot be provided for-zany of the above, then the Tenant agrees to
pay' their proportionate share of the utility charges which shall be collected as part of the Common Facilities
Contribution set forth in Article VII herein.
1,A 16
.c
Section 11.02. Owner's Liability for Interruption
Owner shall not be liable in any way to Tenant or to'any other party occupying any pert of the leased
Premises for any failure or defect in or of any utility service furnished to the Leased Premises 'or the Common
Facilities, by reason of any requitement, act or omission of the public utility company serving the Shopping
Center, with electricity, water or other-utility service, or because of necessary repairs or improvements, or by
reason of any cause-referred to in Section 23.02_
ARTICLE -)M = ESTOPPEL CERTIFICATE', ATTORNMEW- PRIORITY OF LEASE: RIGHTS OF
MORTGAGEE '
Section 12.01. Estoppel Certificate
Tenant-agrees, within 10 days after written request by Owner, to execute, acknowledge and deliver to and
in favor of any proposed mortgagee or purchaser of the Shopping Center, an estoppel certificate, in the form
customarily used. by such proposed mortgagee or purchaser, evidencing the status of performance under this
Lease and'the terns of this Lease. Tenant agrees, within 10 days after written request by Owner; to deliver to
Ovvrier a current financial statement of Tenant, duly certified by an officer thereof (if Tenant is a corporation) and
-an independent certified public accountant and such other financial information of Tenant as. Owner shall
reasonably request.
Section. 12.02. Attornment.
Tenant shall, in the event any proceedings are brought.for-the foreclosure of, or in the event of the
exercise of the power of We under, any mortgage made by Owner covering any part of the Shopping Center, or
in the event of any-sale of the Shopping Center; attorn to the purchaser upon. any such- foreclosure or.- sale and
recognize such purchaser as Owner under this Lease. Upon the request of any interested. party, Tenant shall
execute, acknowledge and deliver an instrument, in form and substance satisfactory to such party, evidencing the
attomment provided for in this Section.
',Section 1-2.03. Priority of Lease
Upon written request of the holder of any first mortgage now or hereafter covering any part of the
Shopping Center, Tenant will subordinate its rights under this Lease or make this Lease prior in right and priority.
to the lien thereof and to all advances made or hereafter to be made upon the security thereof; and Tenant shall,
within ten (10) days after written demand therefor, execute, acknowledge and deliver an instrument, in the form
customarily used by such encumbrance holder, effecting such priority; PROVIDED, HOWEVER, at the option of
the holder of such-mortgage, such holder shall be entitled to effect such priority by filing a unilateral declaration
to that effect with the recorder of deed in the County and State in which the Leased Premises is located.
Section 12.04. Rights of Owner's Mortgagee
Within 10 days after demand by the holder of any mortgage covering all or any part of the Shopping
Center, Tenant shall execute, acknowledge and deliver an agreement in favor of and in the form customarily used
by such encumbrance holder, by the terms of which Tenant will agree to give prompt notice to such encumbrance
holder in the event of any casualty damage to the Leased Premises or in the event of any default on the part of
Owner under -thim-Lease, and rd&--agree to allow such encumbrance holder a reasonable,.leng{h.;of time (taking-;;.
into consideration for the purpose-of determining such permitted length of time any delays endountered by reason
of any of the causes referred to in Section 23.02), after notice to cure or cause the curing of such default before .
17
ARTICLE '= - ASSIGN SUBLETTING AND CORPORATE OWNERMI:IIP
Section 13.01. Consent Required
(A) Tenant shall not voluntarily, involuntarily or by operation of law assign or encumber this Lease,
in whole or in part, nor sublet all or any part of the Leased Premises without the prior consent of Owner in each
instance. Notwithstanding any assignment or subletting, Tenant shall remain fully liable under this Lease and
shall not be relieved from performing any of its obligations hereunder. As 'a condition to any assignment of this
Lease by Tenant, which is permitted under this Lease, the assignee thereof shall be required to execute and
deliver to Owner an agreement in recordable form, whereby such assignee assumes and agrees with Owner to
discharge all obligations of Tenant under this-Lease.
(B) If Tenant shall request Owner's consent to:an•assignment of this Lease 'and Owner shall consent'
thereto, the assignee ("Assignee'?.shall pay directly to Owner, as additional rent hereunder, at stich times as the .
Assignee shall have agreed to pay Tenant, an amount equal to any consideration the Assignee shall have agreed
to pay Tenant on account of•such assignment. If Assignee shall fail to pay Owner any such. consideration when
due; such. failum shall constitute a default under this Lease.
(C) If Tenant shall request Owner's consent to a subletting of the Leased Premises or any part thereof
and.Owner shall consent thereto, Tenant shall pay Owner, as additional rent, in addition to-the. Annual Minimum
Rent and other charges payable hereunder, an amount equal to any consideration- paid by the subtenant to Tenant
in-excess of (i) the Annual Minimum Rent and other charges payable hereunder if all of the Leased Premises are
so sublet or (ii) if less than all of the Leased Premises are so sublet, the Annual Minimum Rent and other charges
payable hereunder allocable to the portion of the Leased Premises to sublet based on the number of square feet of
Gross Leasable Area in the Leased Premises so sublet divided by the total number of square feet of fross
Leasable Area in the Leased Premise's prior 'to such subletting. The foregoing amount shall be determined
monthly and paid by Tenant to'Owner-da'the first day of each calendar month in advance during the term of such
sublease. If Tenant shall fail to pay Owner any such consideration, such failure shall be a default under this
Lease.
Section 13.02. Corporate Ownership
If at any time during the term a cumulative total of more than 49% of the voting stock of Tenant (if
Tenant shall be a corporation) shall be transferred, directly or indirectly, by sale, assignment, gift or in any other
manner, any such transfer shall, unless made with Owner's prior consent, be deemed an unauthorized assignment
of this Lease and a default by Tenant under this Lease.
Section 13.03. Owner's Ri ht to Assisn
If Owner conveys or transfers its interest in this Shopping Center or in this lease (which sale or transfer
may be effected without Tenant's consent), upon such conveyance or transfer, Owner (and i- the case of any
subsequent conveyances or transfers, the-then. grantor or transferor). shall be released of and from all liability with .
respect to the performance of any covenants and obligations on'the part of Owner to be performed after the-date
of such conveyance or transfer, it being intended hereby that the covenants and obligations on the part of Owner
1EM 18
ARTICLE XIV - WASTE: HAZARDOUS WASTE: GOVE &N-MENTAL AND INgUR ANCE REGULATIONS
Section 14.01. Waste or Nuisance..
Tenant shall not. commit or suffer to be committed (i) any waste in or upon the Leased premises or (ii)
any nuisance or any other'act or thing (whether a nuisance or othermse) which may disturb the quiet enjoyment
of any other tenant or occupant in the Shopping Center or its or their customers or other invitees.
Section 14:02. Hazardous Waste
(A) Tenant hereby covenants, represents and. warrants that it shall not generate, transport, handle, store or
otherwise encounter in, on or about the Real Property, any hazardous waste or substance (for purposes of this
Section herein called "hazardous waste") as defined by the applicable federal, state or local environmental or
occupational • standards, including but not limifed to material defined as such -.in, or for purposes of, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA") as amended by the Superfund Hazardous Materials Transportation Act (49 U.S:C. §1802 et seq.),
the Resource Conservation'and Recovery.Act {" RCRA") (42 U.S.C. § 1802, ,etthe Federal Water Pollution
Control Act (33 U.S.C. §1251,-et seg.), the. Safe brinking Water Act- (42- U.S.C. §300(f), et seq.), the Toxic
Substance Control Act (15 U.S.C. §260I,.et_s, ems..), the Clean Air'Art-f42 U.S.C §7401, et seg.), or any other
federal, state or local statute, ordinance, code; rule, regulation, order or decree regulating, relating to or imposing
liability or standards of conduct concernipg!any•hazardous,' toxic or dangerous waste, substance, element or
-material as now or at any time hereafter in effect or amended (for purposes of this Section herein collectively
called the "Laws"). Tenant further covenants; represents and warrants that there will be no-underground storage
tanks in,'on, under, within or about the Real Property.
(B) Tenant shall not use, store or permit to be stored on the Leased Premises any asbestos in any
form, urea formaldehyde foam insulation, transformers or other equipment which contains dielectric fluid or
other fluids containing levels of polychlorinated biphenyls in excess of fifty (50) parts per million. If Tenant
shall utilize' the Leased Premises for medical office purposes, Tenant shall dispose of. all
products, "sharps", medical instruments and all other types of medical waste in a safe, clean, sanitary mannerland
in accordance with all applicable laws and regulations.
(C) Tenant covenants, represents and warrants that it will indemnify and hold Landlord harmless
from and against any and all liability, actions, claims, losses, damages and expenses arising out of, or in any way
relating to, a breach of the representations, warranties; covenants and agreements set forth in this Section,
including: (a) claims of third parties (including governmental agencies) for damages, includin
property damages, penalties, response costs, injunctive or other relief g personal injury n,
including fees of attorneys and experts, casts of reporting to an ' ro) costs or removal and restoration,
any governmental agency the existence of hazardous
substances, hazardous waste, pollutants and/or contaminants and costs of preparing or causing to be prepared any
and all studies, tests, analyses or reports in connection with any environmental matter c all
obligations, including attorneys' fees, incurred at, before and after any trial or appeal therefrom wheexps or
ther orsnot
taxable as costs, including attorneys' fees, witness fees, deposition costs and other expense;; (d) all other costs,
`=expenses and, iabilities arising from Tenant's violation of the laws or'-any..other environinent#1regulation now in
force or hereafter enacted; and (e) Tenant's disposal of medical waste as set forth in paragraph (A) above. The
obligations of Tenant as contained in this Section shall survive the termination of the Lease.
19 TM
-- .,vr??„?ncnrar ana ursHmrance•Ag lations.
Tenant shall, at Tenant's sole cost, comply with all of the requirements of all governmental authorities
(inchxling without limitation those requiring replacements,. additions
otherwise]), and with all directions, rules, regulations and recommendations of Owand ne st hazes d ,structural
now in
force, or vd? ch may hereafter be in force, pertaining to (i) the Leased premises, (ii) all ofTenant's Property in. the
Leased Premises and (iii) the. use and. occupancy of the Leased Premises.
ARTICLE JfV -MERCHANTS ASSOCIATION.
Section 15.01. Merchants' Association. INTENTIONALLY OMI'I"I'ED
Section 15.02. Promotion Fund INTENTIONALLY OMITTED
Section 15.03. Adventism INTENTIONALLY ODD
ARTICL' E WE - DESTRUCTION
Section 16.01. Destruction of=Leased Premises
(A) If the Leased - Premises are damaged or destroyed by fire or other casualty insurable under-
standard fire and extended coverage. insurance so as to become partially ortotally tintenantable, the same, unless
this Lease is terminated as provided in paragraph (B), shall be repaired and-,.restored by Owner and Tenant with
due diligence, and during such. restoration period; the Annual Minimum and-,.restored
(but not the Annual Percentage
Rent) and other charges payable hereunder shall equitably abate to the extent the Leased Premises are materially
affected thereby. Owner's obligation under this paragraph (A) to repair and restore shall be limited to the repair
and restoration of those parts of the Leased Premised which were originally constructed and or installed by
Owner' at its expense including but not limited to Owner's Work set forth in Exhibit B. All other repair and
restoration shall be the responsibility and at -the expense of the Tenant.
(B). If the Leased Premises are. damaged or destroyed to the extent the cost of restoration thereof
would exceed 15% :of the amount it would .have cost to replace the Leased Premises in its entirety at the time
such damage or destruction occurred, then Owner may elect to terminate this Lease by giving notice to Tenant of
its election to do so within 30 days after such occurrence. If Owner exercises its right to terminate this Lease,
then this Lease shall cease, effective as of the date of such damage or destruction, and all rent and outer charges
payable by Tenant shall be adjusted as of that date.
Section 16.02. Destruction of Sho in Center.
Notwithstanding anything to the contrary set forth in -Section 16.01 in the event all or any Shopping Center shall be damaged or destroyed by fire or other cause (notwithstanding that the Leased Premises
may be unaffected thereby), to the extent the cost of restoration thereof would exceed 25% of the amount it
would have cost to replace the Shopping Center in its entirety at the time such damage or destruction occurred,
then Owner may terminate this Lease by giving to Tenant 30 days' which notice shall be given, if at all, within 90 days following the date prior notice of such occfurrence. Inlthe event of the
termination of this Lease as'aforesaid, this ';Lease shall cease 30 days after such notice is given, andAe rent and
other charges hereunder shall -be adjusted as'-of that date.
C. 20
ARTICLE.X-VII = ENLIldI•?I?T DOMAIIVARTICLE XVM TENANT'S DEFAULT: AND SECURITY DEPOSIT
Section 18.01. -Default by Tenant
If the Annual Minimum Rent, Annual Percentage Rent, additional rent, or any other charge payable by
Tenant under this Lease shall be unpaid on the date payment.is required by the terns hereof and shall remain so
for a period of 5 days afier.Owner gives Tenant notice of such default, or if Tenant fails to perform any of the
other terms, conditions, covenants and obligations of this Lease to be observed and performed by Tenant for
more than 21 days after Owner gives Tenant notice of such default (it being. agreed that a default, other than the
failure to pay money; which is of such a. character that rectification thereof reasonably requires longer than said
21 day period and completes the same with due . diligence), or if Tenant shall vacate or abandon the. Leased
Premises (it being agreed that, subject to the provisions-of Articles XVI and XVH and to Section 23.02; Tenant's
failure to operate its business in the Leased Premises for seven consecutive days or more- shall conclusively be
deemed an abandonment) or suffer this Lease to :be taken under any writ of execution, attachment or other
process of law, or if this Lease shall by operatiom:of law .devolve upon or pass to any other- party other than a
party;.i-f any, to whom Tenant is authorized to assign tI s.Lease by the provisions of Section 13.01, or if an "Act
of Ban]ouptcy" (as defined in Section 18.02) shall occur, -or if Owner shall have notified Tenant of Tenant's
default three (3) or more times in any twelve calendar month period, then, in any of such events, Owner shall
have, besides its other rights or remedies, the following immediate rights:
(1) At its option, to terminate this Lease and the term hereby created without any right on the part of.
Tenant to* waive the forfeiture by payment -of. any sum due or by other performance of any 'condition, term or
covenant broken, whereupon Owner shall be entitled to recover, in addition to any and all sums and damages for
violation of Tenant's obligations hereunder in existence at the time of such termination, damages for Tenant's
default in an amount equal to the amount of the rent reserved for the balance of the term of this Lease, as well as
all other charges, payments, costs and expenses herein agreed to be paid by Tenant, all discounted at the rate of
six percent (6%) per annum to their then present worah, less the fair rental value of the Premises for the
remainder of said term, also discounted at the rate of six percent (61/o) per annum to its then present worth, all of
which amount shall be immediately due and payable from Tenant to Owner.
(2) At its option, by notice to Tenant, to re-enter and take possession of the Leased Premises without
terminating this Lease. No re-entry or taking possession of the Leased Premises by Owner pursuant to this clause
(2) shall be construed as an election on its part to terminate this Lease unless a notice of such intention is given to
Tenant (all other demands and notices of forfeiture or other similar notices being hereby expressly waived by
Tenant).
(3) At its option, -to require that.upon. (i},any terminatiq of. this Lease, whether by lapse of time. or
by the exercise of any option by Owner to terminate the same or in any other manner whatsoever, or (ii) any
termination of Tenant's right to possession without termination of this Lease, Tenant shall immediately surrender
21 '7W
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66.
possession of the Leased Premises to Owner: and immediately vacate the same, and remove all effects therefrom;
except such as may notb_e removed under other provisions of this Lease. _
(4) At its 'option, to make such alterations and repairs as Owner shall determine may be reasonably
necessary to relet the Leased Premises, and to relet the same or any part thereof for such term or terms (which
maybe for a term extending beyond the term of this Lease) and upon such terns and conditions as Owner in its
sole discretion may deem advisable. Upon each reletting, all rentals received by owner from such reletting shall
be applied as follows: first, to the payment of any indebtedness other than rent or othei charges due'under this
Lease from Tenant to Owner, second to the payment of any reasonable costs and expenses of such ireletting,
including brokerage fees and attorneys' fees and costs of such alterations and repairs, each of which fees and
costs . shall be reasonable in amount; and third, to the payment of rent and other charges due and unpaid
hereunder. In no event shall Tenant be entitled to receive any surplus of any sums received by Owner on a
reletting in excess of the rental and other charges payable hereunder. If such rentals and other charges received
from such reletting during any month are less than those to be paid during that month by Tenant hereunder,
Tenant shall pay any such deficiency to Owner (notwithstanding the fact that Owner may have received rental in
excess of the rental and.other charges payable -hereunder in previous or subsequent months), such deficiency to
be calculated and payable monthly. -Notwithstanding any reletting without termination, Owner may at any time
thereafter elect to terminate this' Lease •for.such previous breach in the manner provided in this Section.
S) If Tenant shall default in the payment of the rent herein reserved or in the payment'of any
other sumis.due hereunder by Tenant, Tenant hereby authorizes and empowers. any prothonotary or
attorney of any court of.record to appear for Tenant in any and aU.actions which may be brought for said
rent and/or said other.surhs; and/or to sign for Tenant an agreement for enteriug.in any competent court
an. amicable action or -actions for the recovery of said rental and/or:ather sums; and in said suits or in said '
amicable action or actions to confess judgment against Tenant for all- or--any part of said rental and/or said
other: sums, including -but not limited to the amounts due from Tenantlto Owner-..under subparagrap4s!-(1), "
(2), (3) and/or (4),of the Paragraph; and for interest and costs, together with any attorneys ';;commission
for collection of ten percent (10%). Such authority shall not be exhausted by one exercise'-thereof, but '
judgment may be confessed as aforesaid from time to time as often as'any of said rental and/or other sums
shall- fall due -or be in arrears; and such powers may be exercised as well after the expiration' of the initial
term of this Lease and/or during any extended o rene al to ' of this Lease and/or after the expiration of
any extended or renewal term of this Lease.
V1, /hnau?t)
(6). When this Lease and the term of any extension or renewal thereof shall have been
terminated on account of any default by Tenant hereunder, and also when the term hereby created or any
extension or renewal thereof shall have expired, it shall be lawful for any attorney of any court of record
to appear as-attorney for Tenant as well as for all persons claiming by, through or under Tenant, and to
sign an agreement for entering in any competent court an amicable action in ejectment against Tenant and
all persons claiming by, through or under Tenant and therein confess judgment for the recovery by Owner
of possession of the Premises, for which this Lease shall be his sufficient warrant; thereupon, if Owner so
desires, an appropriate writ of possession may issue forthwith, without any prior writ or proceeding
whatsoever, and provided that if for any reason after such action shall have been commenced it shall be
determined that possession of the Premises remain in or be restored to Tenant, Owner shall have the right
for the same default and upon any subsequent default or defaults, or upon the termination of this Lease or
Tenant's right of possession as hereinbefore set forth, to bring one or more further amicable action or
actions as hereinbetore set forth to recover possession of the Pr ' es onfess judgment for the
recovery of possessidn.of=the Premises as hereinbefore provided.
(Tenant)
vl
IBM
)% 22
. (8) At its option, to collect from Tenant any other loss or damage which Owner may sustain by
reason of any breach and any diminished value of the Leased Premises resulting from said breach.
Tenant hereby waives and releases all errors and defects which may intervepe in the Owner's
exercise of any of its remedies hereunder, including the summary remedies; Tenant further waives the
right of inquisition on any real estate levied on and Tenant voluntarily consents to an immediate execution
upon any judgment obtained by Owner; Tenant also waives- and releases all relief from any and all
appraisement, stay or exemption law of any state now in force or herea a acted; Tenant waives any
notice to quit required by any law now in forcelof hereafter enacted.
' (Tenant)
Nothing in this Section shall be- deemed to limit Owner's rights and remedies in the event of a default by
" Tenant, and the Owner's rights and -remedies set forth in this Lease shall be- in. addition to those available to
Owner at law or in equity.
Section l8.02.:B4nhj tey. _
(A) If at any time priorto•or.:after the commencement of the term-of this Lease there shall be filed by
Tenant or Guarantor, in any court pursuant to any statute either of the United States or of any State, a petition in
bankruptcy (including, without limitation, a petition for liquidation, reorganization or for adjustment of debts of
an individual with regular income), or if any case, proceeding or other action shall be commenced seeking to
have an order for relief entered against Tenant or Guarantor as a debtor in bankruptcy proceedings. or to
adjudicate Tenant-or Guatantor a banla*t or insolvent, or seeking reorganization,:: arrangement, adjustment, 5
liquidation, dissolution or composition of it or its debts under any law relating to-,bankruptcy, insolvency,
reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its property, and such case, proceeding or other action results in
the entry of an order for relief or is not dismissed within 30 days of the filing thereof, or if Tenant or Guarantor
becomes insolvent or is generally not paying or admits in writing its inability to pay its debts as-they mature, or
makes an assignment for the benefit of creditors or petitions for or enters into an arrangement with its creditors or
a custodian is appointed or takes possession of Tenant's or Guarantor's property (whether or not a judicial
proceeding is instituted in connection with such arrangement or in connection with the appointment of such
custodian), or if Tenant or Guarantor shall take any action to authorize or in contemplation of any of the events
set forth above (each of the foregoing events to be hereinafter referred to as an "Act of Ban1gUIRtcv"), then, in
addition to Owner's other rights and remedies under this Lease and applicable law, this Lease shall, at Owner's
option (and if permitted by law), be terminated, in which event neither Tenant nor Guarantor, nor any person
claiming through or under Tenant or Guarantor or by virtue of any statute or of an order of any court, shall be
entitled to possession of the Leased Premises, and Owner, in addition to the other rights and remedies given by
this Lease, or by virtue of any statute or rule of law, may retain as liquidated damages any rent, Security Deposit
or moneys received, by•-Owner from Tenant or-others in behalf of Tenant. All -rent, additional rent..anc},other
charges payable by Tenant under this Lease shall constitute rent for the purpose of applying the provisions of
Section 502(b)(7) of the Federal BankmTtcy Code.
23
N
W If there shall be a default in the payment of Annual Minimum Rent or
any additional rent, or a default in the observance or performance of any other provision
of this Lease binding on Tenant, Owner shall be entitled to immediately discontinue
'furnishing .ariy utilities and other services it has been providing to *,c Leased Premises,
-until such time as such defaults have been fully cured, it being agreed that the foregoing
'action by Owner shall in no way cause of result in any abatement of Annual Minimum
Rent or any. other charge payable by Tenant during the continuance of the term of this
Lease.
(ii) If the Lease is assumed by a trustee in bankruptcy, and assigned by the
trustee to a third party, then such party shall (a) execute and deliver to Owner an
agreement in recordable form whereby such party confirms that it has assumed and
agrees with Owner to discharge all obligations (including, without. limitation, the
provisions of Article VI respecting the permitted Use of the Leased Premises and. the
manner of operation thereof) binding on Tenant- under. this Lease,- (b). represerit, and
warrant in writing to Owner that such party has a net worth and operating experience at.
least comparable to that possessed by Tenant named herein -and Guarantor as of the .
execution of this Lease;- (e) -deposit .with Owner a Security Deposit :and advance rent
equal to that initially deposited by. Tenant named herein; and {d} grant Owner, to secure _
the performance of such -party's- obligations under this Lease a security interest in such
party's merchandise, inventorypersonal property, fixtures, furnishings, and all accounts
receivable (and in the proceeds'of all. of the foregoing) with respect to its operations iii
the Leased Premises, and 'in:connection therewith, such party shall execute such security
agreements, .financing statements and other documents {the forms of which are to be
designated by Owner) as are necessary to perfect such lien.
(iii) 'Lease shall be deemed a lease of "Nodresiden$al Real Property" within
a "Shopping Ceatere"for the purpose of Section 3S-'of the Federal Bankruptcy Code.
(C) Any person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy
Code, 11 U.S.C. Section 10 1, et M.. (the "Bank wtcy Code') shall be deemed without further act or deed to
have assumed .all . of the obligations arising under this Lease on and after the date of such assignment. If this
Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code; any and all monies
or other considerations payable or otherwise to be delivered in connection with such assignment shall be paid or
delivered to Owner, shall be and remain the exclusive property of Owner and shall not constitute property of
Tenant or of the estate of Tenant within .the meaning of the Bankruptcy Bode. Any and all monies or other
considerations constituting Owner's property under the preceding sentence not paid or delivered to Owner shall
be held in trust for the benefit of Owner and be promptly paid or delivered to Owner.
4
by l 24
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1 7:
•Sectionl•8.03.:'Ownei's Riitiit=to `?ur? Ijefaults .., _ -
If Tenant fails to
perform any agreement or obli
gation on its part to be performed— under this Lease,
Owner shall-have. the right (i) if no emergency exists, to perform the same after giving 15 days' notice to Tenant;
and (ii) in any emergency situation, to perform the same immediately without notice or delay. For the purpose of
rectifying Tenant's defaults as aforesaid, owner shall have the right to enter the Leased Premises: Tenant shah,
on demand, reimburse Owner for the, costs and expenses incurred by Owner in rectifying Tenant's defaults as
aforesaid, including-reasonable attorneys' fees. Owner shall not be liable or in any way responsible for any loss,
inconvenience, anmyance,.or damage resulting to Tenant or anyone holding under Tenant for any action taken by
Owner pursuant to this Section. ;
Section 18.04. Security Deposit
(A) Tenant, contemporaneously with the execution of this Lease, has deposited with Owner the sum
designated - as the "Security Deposit" in A-1 of the Basic Lease Provisions, receipt of which is hereby
acknowledged. The Security Deposit shall bd held by' Owner, without liability for interest, as security for the
faithful performance by Tenant of all of the terms, covenants and conditions of this Lease by Tenant to be
performed. Owner shall not be required to hold the Security Deposit as a separate fund, but may commingle it
with other hands. If after the execution •of this Lease Agreement and Owner's receipt of the' Security Deposit, .
Tenant would fad to commence under -the terms of this Lease Agreement, Tenant shall forfeit the Security
Deposit, which shall be retained by Owner; this Lease Agreement shall terminate and all of the Owner and
Tenants obligations hereunder shall become.null and void.
R. If at any time during the-term any Annual Minimum Rent, Annual Percentage Rent, or additional rent.
payable by Tenant shall be overdue, or.if Tenant fails to perform any of the other terms, covenants or conditions
to.be performed by Tenant, then Owner,.at its option, may appropriate and apply all.or any portion of the Security
Deposit to-the-payment of any such overdue Annual Minimum Rent, Annual Percentage Rent, or additional rent
and to the compensation of Qwner for loss- orAamage sustained by Owner due to,a breach by Tenant as aforesaid,
without prejudice to Owner's other remedies. Should all or any part of the Security deposit be appropriated and
applied by Owner as. provided above, then Tenant shall, upon demand of Owner, forthwith- remit to Owner a
sufficient amount in cash to restore the same to the original sum deposited. Should Tenant comply with all of the
-terms, covenants and.- conditions of this Lease binding on Tenant, the Security Deposit shall be returned in full to
Tenant within 60. days after the later of the following dates: (i) the date of expirati on of the terra gr (ii) the date
Tenant shall deliver to Owner such inspection reports- as Owner shall require setting forth that the Leased
Premises were surrendered in accordance with Section 11.02 of this Lease
.ARTICLE XIX - ACCESS BY OWNER
Section 19.01. Right of Entry.
Owner and its designees shall have the right to enter the Leased Premises during reasonable business
hours (except in the event of emergency, when Owner may enter at any time) for all lawful purposes (including
the right to show the Leased Premises to prospective purchasers of the Shopping Center, and, during the last six
months of the term, the right to show the Leased Premises to prospective tenants) and to whatever extent
necessary or appropriate to enable Owner to exercise all of its rights under this Lease (including without
Iirnitation the right to perform certain provisions of this Lease on Tenant's behalf as set forth in Section.18.02)
and to carry out all of Owner's obligations hereunder. Owner and Owner's representatives shall,also have the
• rightw3o, enter the. Leased Premises and to erect scaffolding. and barricades.-aroundilhe same.(ba}t;opt so as to
preclude entry thereto) in order to make such repairs, alterations, improvements azid.Additions to the building of
which the Leased Premises form a part and the foundations and walls of the Leased Premises as Owner may
25?
.r
ARTICLE XX - ARBURATION• RIGHT TO APPEAL,
Section 20.01 - Arbitration.
Any disagreement between Owner and Tenant with respect to the interpretation or application of this
Lease, or the obligation of the parties hereunder, shall be determined by arbitration unless the parties otherwise
mutually agree in writing. Owner and Tenant shall agree upon one arbitrator, otherwise there shall be three (3),
one named in writing by the Owner and one named in writing by the Tenant within-ten (10) days after notice of
arbitration is served by either upon the other, and a third arbitrator selected by those two arbitrators within ten
(10) days thereafter. No one shall serve as an arbitrator who is in any way financially interested in this Lease or
in the affairs of either party- hereto... This agreement to.arbitrate shall be specifically enforceable under the
prevailing arbitration laws. The arbitrator or arbitrators shall have the power to -award to..eithgT party to the
dispute such sums; : costs, expenses, and attorney's -fees as the arbitrator or arbitrators.may deem proper. The
award rendered by the arbitrator or arbitrators%sball be--appealable to a court of competent jurisdiction within
thirty (30). days of notice of the arbitrators' award. Such'appeal• shall be prosecuted without 'delay and as rapidly
as possible. ?..
Section 20.02 - Waiver of 'T'rial By Jury.
_
TIHE PARTIES HEREBY WANE. TR1AL.-:-Byw. JURY IN ANY ACTION, 'TROCEEDING,
COUNTERCLAIM OR APPEAL BROUGHT BY. ETITIER PARTY AGAINST THE OTHER' ON ANY
MATTER Tenant. agrees that any action brought in connection with this Lease may be maintained in any court
of competent jurisdiction in the Commonwealth of Pennsylvania. Tenant hereby appoints Owner-as agent for the
purpose of accepting service of any process, s*cct only to the condition that Owner promptly send Notice of
such process toTenant at the address of Tenant set forth in A-1. of the Basic Lease Provisions.-•Tn case suit shall
be brought because of the breach of any agreemerrror obligation contained in this Lease on the part of Tenant or
Owner to be kept- or performed, and a breach shall be established, the prevailing party shall (to -the dictent
permitted by law) be entitled to recover all expenses incurred therefor, including reasonable- attmmeyst,fees.
Owner's rights and remedies shall be cumulative and may be exercised and enforced concurrently. ' Any right or
remedy conferred upon Owner under this Lease shall not be deemed to be exclusive of any other right or remedy
Owner may have. All rights and liabilities herein given to or imposed upon the respective parties hereto shall,
except as may be otherwise herein provided, extend to and bind the respective heirs, executors, administrators,
successors and assigns of the said parties; and if there shall be more than one Tenant, they shall all be bound
jointly and severally by the terms, covenants and agreements herein contained. This paragraph shall only become
effective in the event that there is an appeal of an arbitrators award.
ARTICLE = - OWNER'S LIABILITY
Section 21.01. Limitations on Liability
(A) Anything contained in this Lease to the contrary notwithstanding, Tenant agrees that Tenant shall look solely to-the fee simple--intereWior leasehold ettate-of the Owner in the Shopping Center- for the collection .,h, .
of any judgment (or other judicial- process) requiring the payment of money by Owner in the event of any default
or breach by Owner with respect to any of the terms and provisions of this Lease to be observed or performed by
(v?? 26
SHOPPING CENTER
(B)- Owner shall not be liable for any damage occasioned by failure of the Premises to be in repair,'
nor for any damage done.or occasioned by or from plumbing, gas, water, sprinkler, steam or other pipes or
sewerage, or the bursting, leaking or running of any tank, washstand, water closet or waste pipe in, above, upon
or about the Premises or improvements constituting a part thereof, nor for any damage occasioned by water, snow
or ice being upon or coming through the roof, skylights, trap door or otherwise.
(C) In the event that in this Lease it is provided that the exercise of any right by Tenant or the
performance of any obligations of Tenant shall be subject to the consent or approval or Owner and that the .
consent or approval of Owner shall not be unreasonably withheld or delayed, then in any case in which Owner
shall withhold or delay its consent, Tenant hereby waives any and all rights it may have to recover (and Tenant
shall .riot seek-in any proceeding) any damages from Owner on account thereof; it being agreed that Tenant's sole
remiedy for Owner's' withholding or delaying of eorisent shall be injunctive relief (without any right to damages).
(D) Notwithstanding anything to the contrary contained in this Lease, if Owner shall elect to provide -
security service then;(i) =y,•security service that may be provided by Owner is intended solely for the protection..:
and benefit of the !Contmen Facilities and not for the protection or benefit of the Leased Premises or any other. ••
premises; and (ii) Owner-shall not be liable in any manner whatsoever to Tenant or to any third party by reasorvof•
Owner's actor failure to. act in providing or maintaining security in the Shopping Center.
Section 21.02 -Owner'•s:.Obligations With Respect to Future Building Areas
Notwithstanding anything set out in this Lease to the contrary, it is understood and agreed that (i) Tenant
will not cancel this Lease nor be entitled to claim any actual or constructive eviction because of a. default of
Owner either by act or omission under this Lease when such act or omission relates to any Future-Building Area
-shown on Exhibit A, and tenant will not abate rentals or otherwise credit or offset damages against rental under
thk-Lease because of any..act or omission of Owner under. 'this Lease which relates -to any Future Building Area
shown on Exhibit A, but shall not be construed as a waiver-of any rights Tenant may have in person against or as
a waiver of any remedies by way of injunctive relief which Tenant may have against Owner (other than one who
becomes such after the foreclosure of any first mortgage covering any part of the real property which is contained
within the Shopping Center, or after the execution of a deed in lieu thereof); and (ii) the restrictions set out in this
Lease, if any, to the extent the same relate to any Future Building Area shown on Exhibit A, and all obligations
of Owner with respect to such restrictions shall absolutely and automatically terminate for all purposes from and
after the date the holder of any first mortgage affecting the real property which is contained within the Shopping
Center, forecloses its mortgage or obtains a deed in lieu thereof. For purposes of this Section, an "Outlot" shall
be considered the same as a Future Building Area.
ARTICLE XXII - HOLDING OVER
Section 22.01. Holding Over.
???a$ :•' In the event Tenant remains in possession of the-.Leased,.-Premises after the expiration of the tenancy
created hereunder, and without the execution of a new lease, Tenant, at the optiono of Owner, shall be deemed to
be occupying the Leased Premises as a tenant from month-to-month, at a rate equal to 125% of the Annual
27 J ;
Section 22.02 Time is of the Essence
Time is of the essence of each provision of this Lease.
Tenant hereby waives notice to quit the Premises at the expiration of the term of this Lease or any earlier
termination, and this Lease shall constitute sufficient notice to quit without any obligation upon Owner to provide
Tenant with any additional notice thereof.
ARTICLE XX R - WAIVER NOTICE- DEFWITIONS MISCELLANEOUS
Section 23.01. Waiver.
No delay or omission in the exercise Of -any right or remedy of Owner on any default by Tenant shall
impair such a right or remedy or be construed' as a 'waiver. No covenant, term or condition of this Lease shall be
-deemed to have been-waived unless such waiver be-in writing signed by the;party:charged therewith.
Section•23.02. Force Maieure -
In the event either party hereto shall'be delayed or hindered in or prevented from the performance of any-
act required under this Lease by reason of strikes, lockouts, labor troubles; inability to procure materials.- failure . .
of power, restrictive governmental law or regulations, riots, insurrection,-war or other reason of a Re nature not
the fault of the party delayed in performing .work or doing acts required under the terms of this Lease, then
performance of any such act shall be extended-for a•period equivalent to the period of such-Aelay. The provisions
of•'this Section shall•iiot (a) operate to excuse: Tenant from prompt payment ofAnnual'Minimum Rent or any
-other payment required by the terms of this Lease, and '(b) be applicable to delays resulting from the inability of a
party to obtain financing or to proceed with its obligations under this Lease because of a lack of fimds..
Section 23.03. Notices and Pavments
(A)':•.? Whenever any notice, consent, approval or authorization ("Notice") is 'required or permitted";:
under this Lease, the same shall be in writing and all oral notices, consents, approvals and authorizations shall be
of no effect All Notices by Tenant to Owner shall be sent to Owner by registered or certified mail (return receipt
requested), postage prepaid, or by a nationally recognized overnight courier service (Federal Express, AirBorne,
UPS Next Day Air or similar) at the "Address of Owner" designated in Section A-1 of the Basic Lease
Provisions, or to such other address(es) as Owner may later designate in writing (including, without limitation,
any notice which Tenant shall be required to give Owner's mortgagee pursuant to Section 12.04). Until Owner is
notified otherwise by Tenant, all Notices by Owner to Tenant shall be deemed to have been duly given if sent by
registered or certified mail (return receipt requested), postage prepaid, or by a nationally recognized overnight
courier service (Federal Express, AirBorne, UPS Next Day Air or similar) to Tenant at the "Address of Tenant"
designated in Section A-1 of the Basic Lease Provisions. In the case of notices sent by overnight courier,
delivery shall be deemed effective one day after such notice is sent Until otherwise notified in writing by
Owner, Tenant shall pay all rent and other sums required to be paid by it under this Lease by check payable to the
order of Owner and shall deliver the same, together with all sales reports required under Article III and all
certificates of-insurance required to be furnished by Tenant pursuant to Article X, to the address of Owner
designated in-SectibffiA-1 of-the 13as Lease
. Provisions. : ?•.? :,.,.?3: - .. ,
P3N9 z$
1.?
-- .:...lam.
...c.. .- ....-e...-.?r..m_......a.a-.c.. - . ... :. ........_...--_ ...:..... _....»-_.,e', ...: Bn-::--J;-•.__1`.--_-:rid :iaSeeLY:r-_'.:.?==-!iL+^q•? _ _
• (B). es sball.:be-.effeghve?:upon'beingdepdslted'in?`the Vriitecl'States mat?•?ui tlie'mariner
pzs6rilied ic?•paragraph (A) of this Section. However, the time period in which:?_response to any such Notice
must be gi?+en shall commence to run from the date of receipt by the-addressee thereof as' shown on.the return.
receipt of the Notice. Rejection or othQr refusal to accept or the inability to deliver because of changed address
of which no Notice was given, shall be deemed to be receipt of the Notice as of the date of such rejection, refusal
or inability-to deliver..
Section 23.04. Definitions.-
(A) The term "calendar Year" shall mean a period: of 12 consecutive full calendar months,
commencing January 1 and ending Deceinber 31.
(B) The term ':Guarantor" as used in this Lease shall be deemed to mean any person. (and their
spouse, if any), partnership, corporation or other entity which has undertaken, by separate instrument,
endorsement on this Lease or in any other manner, to warrant, agree or guarantee that the obligations of Tenant,
or any portion thereof, shall be performed by Tenant.
(C):. The term "Gross Leasable Area" shall mean the aggregate floor area within the,-:exterior faces of
the exterior walls (except party walls as to which the center thereoZ instead of the exterior faces thereof, shall be
used). Changes in Gross Leasable Area occurring during any calendar month shall be effective on the first day of
the next -succeeding calendar month and, unless otherwise herein specified to the contrary, the total number of
-square feet of Gross Leasable Area in effect for any calendar year shall he the average. of the number of square
feet of Gross Leasable Area on the first day of each calendar month in such calendar year.
(D) The term "including" as used ih this Lease shall mean "including without limitation".
(E)' The term "kimest Rate" shall mean a rate of interest, per•.annum; equal to the lessor of (i) the
'highest lawful--rate of interest that may be charged Tenant under the laws of the State in which the Leased
Premises is located or (ii) two percent (2%) in excess of the "Effective Rate" of Chase Manhattan Bank, N.A.,
New•York, New York (or its successor) (the "Dank") initially determined as of the date any rent, additional rent
or other payment under. this Lease is due and for which interest at the Interest Rate is charged and-thereafter
adjusted daily, PROVIDED, HOWEVER, if the Bank should cease to exist as a viable commercial bank; then the
"Effective. Rate" of any -.commercial bank selected by,Owner and having capital and surplus of at least-;
$50,000,000.00 shall be used to determine the Interest Rate. The term "Effective Rate" shall mean the rate of
interest announced by the Bank or other commercial bank selected by Owner as aforesaid, as the case may be, as
its prime lending rate. The Effective Rate shall be as announced by the Bank notwithstanding that the Bank may
actually charge other rates, and a written statement from the Bank or any national investment brokerage firm or
national bank as to what the Effective Rate was on any given day shall be deemed conclusive.
(F) The term "_Lease Year" shall mean a period of twelve consecutive full calendar months. The first
Lease Year shall begin on the date. of commencement of the term if such date of commencement shall occur on
the first day of a• calendar month; if not, then on the first day of the calendar month next following such date of
commencement. Each succeeding Lease Year shall commence upon the anniversary date of the first Lease Year.
(G)• The term Wgiluge" shall include a deed of trust. The term "mortgagee" shall mean the holder
of a mortgage and beneficiary under a deed of trust.
(H) The term ".Tenant's•Pereentage Share" shall .mean the Tenant's proportionate share based on the.......
calculated percentage of Tenant's Gross Leasable Area as herein defined in relation to the total gross 'leasable
area of the shopping center.
29 1e "'
AS
(n The word "tens" shall mean the period from the date of the commencement of this Lease to the
expiration Cr sooner termination thereof, including any extension thereof, all as herein provided.
Section 23.05. Miscellaneous.
(A) Recording of Lease. Neither party shall record this Lease in its entirety. However, upon the
request of either party, the other party shall join in the execution of a memorandum or so-called "short form" of
this Lease for the purpose of recordation.
(B) Obligations Surviving Termination. All obligations of Tenant and Owner which by their nature
involve performance, in any particular, after the end of the term, or which cannot be ascertained to have been
fully performed until after the end of the term, shall.survive the expiration or sooner termination of the term.
(C) Governing Law and.Iurisdiction The,.laws of the Commonwealth of Pennsylvania shall govern
the validity, performance and enforcement of this Lease.
(D) . No Accord And Satisfaction Flo payment by Tenant or receipt by Owner of a lesser amount than
the-. monthly rent and other charges,-nor shall: any. •_endorsement or statement. on any check or'on any letter
accompanying any check be deemed an accord-and- satisfaction.
(E) Alterations And -Amendments; 'Except as herein otherwise expressly provided, no subsequent
alteration, amendment, cbAnge or addition to,. this Lease, nor any surrender of the Term,- shall be binding upon
Owner or Tenant unless reduced to writing and;signed by them.
(F No Partnership: Owner does not. in' anyway or for any purpose become a partner of.Tenant in
the conduct of its business or otherwise, nor a joint venturer or a member of a joint enterprise with Tenant.
l-6'
(G) Withholding Consent. Wherever in this Lease .a party's consent or approval is required, such
approval may be withheld arbitrarily unless otherwise herein specifically provided to the contrary.
R Captions: Article Numbers The captions, section numbers, article numbers and index appearing
in this Lease in no way define, limit, construe or describe the scope or intent of such sections or articles of this
Lease. The language in all parts of this Lease shall in all cases be construed as a whole according to its fair
meaning, and not strictly for not against either Owner or Tenant, and should a court be called upon to interpret
any provision hereof no weight shall be given to, nor shall any construction or interpretation be influenced by,
any presumption of preparation of a lease by Owner or by Tenant..
(I) Guaran Y. . At the time of executing this Lease, Tenant shall provided to Owner a signed
Guaranty of Lease including the signature of the spouse, if any, in form and substance as set forth in Exhibit D
hereto. Each Guarantor shall provide Owner with an annual financial statement upon request.
(n Severability. In the event that one or more provisions of this Lease shall be found to be
unenforaeable at law or in equity, the remainder of the -Lease shall'net;beaffected andashall.remain in full force
and effect.
30
,IS
..:., .
?::7,w•rx.'.?f_.... :4n": .. -??.dsF?.S.?z.+r?.Y's _resavla??_ __ _ r">''`=`.?'?.iP -- .s.•'?:a[°?: .: ? _.:+"._ _ _
. _ . .. .. .,......:r.-........o..r:....<c:. .:ate-.,..... r>.._..a.c;.>::.:.....___._.... _ _
(? :Successors and Assigns..;Tlus,Lease.'.sha?'1_be:bmding upon;aaii°sball.:iiiure to. the `beriei7t .of the . :..::. ;
',parties hereto and their respective legal representative, heirs, successor and assigns.
.. . (L) Tenant's Corporate Authority.. If Tenant is a corporation, it shall, concurrently with the signing
of this Lease, furnish to Owner certified copies of the resolutions of its Board of Directors (or of the executive
committee of its Board of Directors) authorizing Tenant to enter into this Lease; and it shall furnish to Owner
proof that Tenant is a duly organized corporation under the laws of the state of its incorporation, is qualified to
do business in the Pennsylvania; is in good standing under the laws of Pennsylvania, and has the power and
authority to enter info this Lease, and that all corporate action requisites to authorize Tenant to enter into this
lease has been duly taken.
(M) Brokers. Except as set forth below, Tenant represents and warrants that it has not dealt with any
broker in respect to this Lease, and agrees to defend, indemnify and save Owner harmless against all demands,
claims and liabilities arising out of any dealings between Tenant and any other broker in respect to this Lease:
Rothman,. Schubert & Reed Realtors. Tenant acknowledges receipt and review of the Consumer Notice attached
hereto as Exhibit E and incorporated herein by reference.
THIS LEASE CONSTITUTES THE ENTIRE AGREEMENT
THIS LEASE AND THE EXHIBITS AND RIDER, IF ANY, ATTACHED HERETO, IS. THE
COMPLETE AGREEMENT BETWEEN: OWNER AND TENANT CONCERNING TEE LEASED PREMISES
.,;-AND THE SHOPPING CENTER_ THERE :ARE- NO ORAL AGREEMENTS; UNDERSTANDINGS,
• PROMISES • OR •%REPRESENTATIONS BETWEEN -OWNER AND TENANT AFFECTING TIES. -•LEASE.
ALL PRIOR NEGOTIATIONS AND UNDERSTANDINGS, IF ANY, BETWEEN THE PARTIES HERETO
WITH • RESPECT TO THE LEASED PREMISES AND THE SHOPPING CENTER SHALL BE OF NO.FORCE
OR EFFECT AND SHALL NOT BE USED TO INTERPRET THIS LEASE..
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date first abovd-written.
WITNESS:
ATTEST:
OWNER. 4
Rothman, Schubert & Reed, a Pennsylvania
General Partnership
By: Xx_? (SEAL)
Samuel L. Reed, Attorney-in-Fact p suant to Power of Attorney
dated August 21, 1996, and recorded in Misc. Book 528, Page
480.
TENANT:
I_ i 1wiLu"L) (SEAL)
Tei i Matthews
._: SEAL
J ifer Scot;/
?`? '
31
Owner agrees, at its expense, to deliver the Leased Premises to Tenant with the following work set forth
below. Owner has not agreed to perform any other work in the premises, and all other work necessary'to
complete the Leased Premises shall be done at Tenant's sole cost and expense.
Owner shall provided Tenant with a "pure vanilla box" which shall include the following
wort lconstruction to the Leased Premises:
1_ Four (4) walls, %Y" dry-walled- and -primed. -
2. 2x4 grid eeiling.with fluorescent lighting through out.: -
3,.: HVAC4eated andicooled with roof top units, gas fired heat, and electric cooling. _
Cooling based on pget (1)-.top per 400•square feet.
4. One (1) bathroom (unisex) with standard plumbing in complfance with ADA
5. One (1) hot water heater for bathroom only. lZ1 1-0 oE,1?OU?lA +ko ooh' tD ux.
d urd a kc of A-
6.. 200 amp electrical service with miscellaneous receptacles through out as required by.
Code.
7. Concrete flooring, 4" thick. 3000.psi.
8. Glass front, all windows and maintenance doors to be aluminum as manufactured by
Kawaneer or equivalent.
9. Water, sewer and gas to be supplied at rear of property.
Tenant shall be responsible for build-out, floor covering, additional plumbing and additional hot water heater to
service the Leased Premises and such other work necessary to complete the Leased Premises all at Tenant's sole
cost and expense and not without Owner's approval.
32
. t?
Tenant shall at all times during the term of the Lease:
I. Observe all traffic regulations, including posted speed restrictions and warnings and-stop signs. Owner
shall have the right of enforcing these regulations and of prohibiting use of access streets, service driveways -and parking areas
to violators.
2. Not permit smoking in the Leased Premises.
3. Use, maintain and occupy the Leased Premises in a careful, safe, proper and lawfW manner, keep the
Leased Premises and its appurtenances, including adjoining areas and sidewalks, in a clean and safe condition.
4. Keep the sidewalks and areas contiguous to the Leased Premises free of ice, snow and litter.
5.. Keep all glass in the doors and windows of the Leased Premises clean.
6. Not, without prior written consent of the Owner, place,•maintain or sell any merchandise in any vestibule or
entry to the Leased Premises,-on the sidewalks adjacent to the premises, or elsewhere on the outside of the Leased Premises..
..7. Keep the Leased Premises clean, orderly and in sanitary condition, free of insects, rodents, vermin and•od=
pests, and if by reason of any infestation of the Leased Premises by insects, rodents, vermin or other, pests, any other•store•in
.the Shopping Center becomes infested by any such condition,, Tenant shall be responsible for exterminating any, such
condition is other infested stores.
8. Not permit undue accumulations of garbage, trash, rubbish and other refuse in or around the Leased
Premises, keep refuse in closed containers within the interior of the premises or a designated dumpster until removed, and
arrange for iregulai removal of refuse at its expense.
9. Not use, permit or suffer the use of any apparatus or instruments for musical or other sound reproduction or
transmission in such manner that the sound emanating therefrom-qr caused thereby shall be audible beyond the interior of the
Leased Premises.. -
10. Not load or unload fixtures or merchandise from any premises entrance except the rear delivery entrance.
11. Not deliver or suer or permit delivery of merchandise to, or collection of refuse from, the Leased Premises
after 11:0b am. on any day.
12. Light the show windows and exterior signs of the premises to the extent that Owner may from time to time
require. .
13. Keep all mechanical apparatus free of vibration and noise, which may be transmitted beyond the confines of
the Leased Premises.
14. Not cause or permit objectionable odors to emanate or be dispelled from the premises.
15. Not overload the floors or electrical wiring and not install any additional electrical wiring or plumbing
without Owner's prior written consent
16. :?1.46t use show windows in the Leased Premises for any purpose othcr_.than display ofanctchandisc for sale in
a neat and attractive manner.
33 {,?
19. Automobiles belonging to Tenant, its employees and invitees, shall be parked only in the areas that may be
designated by'Owner, subject to the provisions of this Lease.
20. Doors in the Leased Premises shall not be covered or obstructed by Tenant.
21. Water closets and other plumbing shall be used for no other purpose than those for which they were
intended and no sweepings, rubbish, rags, or improper articles and materials shall be thrown therein. It is recognized by the
parties that chemicals, paints and thinners are especially injurious to the functioning of the property's sewage disposal system
and, without limitation, shall not be disposed of in such sewage system.
22. No signs, advertisements or notices of any kind shall be painted or affixed to any part of the outside of the
Leased Premises without the prior written permission of Owner.
23.'.. No person of disorderly character will be allowed to frequent or remain on or abbiit the"Leased Premises.
- 24. No nuisance, "public -or .private, shall be created .or -permitted. in the demised premises and the Leased
Premises shall be conducted so as, that no.annoyance is caused to Owner, Owner's employees or other tenants of the Owner. It
is recognized that the Leased Premises are part of a Shopping Center.in which numerous tenants are located *and thafabsolute
supervision of the use of the Leased Premises is necessary in order- to officially maintain and operate an entire Shopping
Center, and the parties therefore agree that the Owner shall have the exclusive and sole right of determining" as.to what
constitutes a nuisances and that its'aeterrnination shall be binding and absolute.
25. Upon-.termination of the Lease, doors and windows of the building shall be left securely fastened and the
keys to the'leased premises shall be delivered to the Owner.
26. • Tenant's fire fighting and prevention apparatus shall be adequate and sufficient and shall be kept in proper
working condition and accessible at all times so as to conform to all applicable laws, ordinances andrregulations. L
IN WITNESS V{ MMOF, the parties set forth theirs hands this day of 2005.
WITNESS: OWNER
Rothman, Schubert & Reed, a Pennsylvania
General P ership
' L- By: (SEAL)
Samuel L. Reed, Attorney-in-Pact pursuant to Power of
Attorney dated August 21, 1996, and recorded in Misc.
Book 528, Page 480.
ATTEST:
TENANT:
t&., .0 • -iLGl,?1)S7 (SEAL)
?Matthe ;
Q V
(SEAL)
ifer S tt
?? 34
GUARANTY OR LEASE
In consideration of the malting of the above Lease dated a" /v 2005, by the
Tenant with the Owner at the request of the undersigned, and in rel' ce of the Guaranty, the undersigned hereby
unconditionally and irrevocably guarantees the payment of the rent to be paid by the Tenant and the performance
by the Tenant of all the terms, conditions, covenants and agreements of the Lease and its Exhibits, and the
undersigned promises to pay all of the Owner's expenses, including reasonable attorney's fees, incurred by the
Owner in enforcing this Guaranty. The Owner's consent to any assignment or assignments, and successive
assignments by'the Tenant and Tenant's assigns, of this Lease, made either withor without notice to the
undersigned, or a changed or different use of the Leased Premises, or Owner's forbearance delay, extensions of
time or any-other reason whether similar to or different from the foregoing, shall in no way or marmer release the
undersigned from liability as Guarantor. Where the undersigned include more than one party, the obligation of
each such party hereunder will -be joint and several. It will not be necessary for Owner to proceed first against
Tenant in involiirg any of Owner's lease remedies before proceeding to enforce this Guaranty of Lease. This
Guaranty of Lease shall only be effective against the undersigned Guarantors for the initial five year Lease Term
and with regard- to obligations under the initial five year Lease Term, and shall be of no- effect and considered
null and voi&With regard to the- terms and obligations under the first and second renewal Lease Terms, should
Y=tlrey be exercised by Tenant
WITNESS the hand' and seal of the undersigned at the date of the above Lease.
WITNESS:
GUARANTOR(S):
Terri Matthews
Matthews- (Spouse)
35 .
1 J?
In-consideration of the making of the above Lease dated i A5 2005, by the
Tenant with the Owner at the request of the undersigned, and in relic cc of the Guaranty, the undersigned hereby
unconditionally and irrevocably guarantees the payment of the rent to be paid by the Tenant and the performance
by the Tenant of all the terms, conditions, covenants and agreements of the Lease and its Exlubits, and the
undersigned promises td pay all of the Owner's expenses, including reasonable attorney's fees, incurred by the
Owner in enforcing this Guaranty. The Owner's consent to any assignment or assignments, and successive
assignments by the Tenant and Tenants assigns, of this Lease, made either with or without notice to the
undersigned, or a changed or different use of the Leased Premises, or Owner's forbearance delay, extensions of
time or any other reason whether similar to or different from the foregoing, shall in no way or manner release the
undersigned from liability as Guarantor. Where the undersigned include more than one party, the obligation of
each such party hereunder will be joint and several. It will not be necessary for Owner to proceed fast against
Tenant in invoking any pf Owner's lease remedies before- proceeding -to'enforde this Guaranty of Lease. This
Guaranty of Lease shall .oitiy be effeative.against•the undersigned Guarantors for the initial five year Lease Term
and with.regard tofabligations under the initial five year Lease Term, and shall be of ho effect ahd considered
.null- and void with regard-to the terms and obligations under the first and second renewal Lease Terms, should
they-be-exercised byTTenarit: ' ,
WMgESS the •hartd'and seal of the undersigned at,the date of the above Lease.
wTfNESS: GUARANTO
Jea fer Sco '
Scott (Spouse)
i
36
CN
Pennsylvania Law requires real estate brokers and salespersons (licensees) to advise consumers who are
seeking to sell or purchase residential or commercial real estate or tenants who are seeking to lease
residential or commercial real estate where the licensee is working on behalf of the tenant of the business
relationships permitted by the Real Estate Licensing and Registration Act. This notice must be
provided to the consumer at the first contact where a substantive discussion about real estate
occurs unless an oral disclosure has been previously provided. If the oral disclosure was provided,
this notice must be provided at the fast meeting or the first time a property is shown to the consumer by
the broker or salesperson.
Before you. disclose any' information to a licensee,. be advised that unless you select an agency.
relationship-the licensee is NOT REPRESENTING YOU. A business relationship of any kind will.
NOT be. presumed. but must be established between the consumer and the liceniee. -
• : Any licensee who provides you with real estate services owes you the following duties:
• Exercise reasonable professional skill and care. which meets the practice standards required by
the Act.
• Deal honestly and in good faith.
• Present, in a reasonably practicable period of time, an offers, counteroffers, notices.. and
communications to and .from the parties in writing. The duty to present written, offers anal
counteroffers may be waived if the waiver i$ in writing.
• Comply with Real Estate Seller Disclosure Act.
• Account fof escrow and deposit funds.
• Disclose all conflicts of interest in a reasonably practicable period of time.
• Provide assistance with document preparation and advise the consumer regarding compliance
with laws pertaining to real estate transactions.
• Advise the consumer to seek expert advice on matters about the transaction that are beyond the
licensee's expertise.
• Keep the consumer informed about the transaction and the tasks to be completed.
• Disclose financial interest in a service, such as financial, title transfer and preparation services,
insurance, construction, repair or inspection, at the time service is recommended or the first time
the licensee learns that the service will be used.
A licensee may have the following business relationships with the consumer:
Seller Agency:
Seller agency is a relationship where the licensee, upon entering into a written agreement, works
only for a seller/landlord. Seller's agents owe the additional duties of:
• Loyalty to the seller-/landlord by acting-in-.the seller'sllandlord's best interest. ; .
• Confidentiality, except that a licensee has a duty to reveal known material defects about
37 INA
I,,,-
If you enter into a written agreement, the licensees in the real estate company owe you the
additional duties identified above under seller agency. The exception.is designated agency. See
the designated agency section in this notice for more information.
Buyer Agency:....
Buyer agency-is - a =relationship where the licensee, upon entering into. a written agLeernept, works
onik for the buyer/tenant. Buyer's agents owe the additional- duties of.
• Loyalty to the buyerhenant by acting in` the buyer's/tenants.best interest:
• Confidentiality, except that a licensee is required to disclose known material defects=
about,tlic property. .
t Making a -continuous and good ,faith effort to f ind a property for the .buyer/tenant, except.-
while the buyer is subject to an existing contract.
• Disclgsure, to other parties in the transaction that the licensee.has been engaged- as' a.:
buyer's -agent. ' .
A buyer's agent-may be paid fees, which may include a percentage of the purchase price, and,.
even if paid by the seller/landlord, will represent the interests of the buyer/tenant.
If you enter into a written agreement; the licensees in the real estate company. owe you the
additional duties identified above under buyer agency. The exception. "is designated agency. See
the designated agency section in this notice for moie information.
Dual Agency:
Dual agency is a relationship where the licensee acts as the agent for both the seller/landlord and
the buyer/tenant in the same transaction with the written consent of all parties. Dual agents owe
the additional duties of
• Taking no action that is adverse or detrimental to either party's interest in the transaction.
• Unless otherwise agreed to in writing, making a continuous and good faith effort to find a
buyer for the property and a property for the buyer, unless either are subject to an existing
contract.
¦ Confidentiality, except that a licensee is required to disclose known material defects
about the property.
%U 38
• Taking reasonable care to protect any confidential information disclosed to the licensee.
• Taking reAponsibility to direct and supervise the business activities of the licensees who
represent the seller and buyer while taking no action that is adverse or detrimental to
either party's interest in the transaction.
The designation may take place at the time that the parties enter into a written agreement, but
may occur at a later time. Regardless of when the designation takes place, the employing broker
is responsible foi ensuring that confidential information is not disclosed.
Transaction.Licensee:
A transaction licensee is a broker or salesperson who provides communication or document
preparation,services or performs other acts for which a license is:required WrMOUT being the
agent or advocate for• either the seller/landlord or the buyer/ tenant. Upon signing a written
agreement or disclosure statement, a transaction licensee bas the. additional duty of limited confi-
dentiality in that the following information may not be disclosed:
• The seller/landlord will accept a price less than the askingthsting price.
• The buyer/tenant will pay a price greater than the price gubmitted_in a written offer.
• The seller/landlord or buyer/tenant will agree to financing terms other than those offered.
Other information deemed confidential by the consumer shall not be provided to the transaction
licensee.
OTHER INFORMATTON ABOUT MEAL ESTATE TRANSACTIONS
The following are negotiable and shall be addressed in an agreementtdisclosure statement with the
licensee:
• The duration of the employment, listing agreement or contract.
• The fees or commissions.
• The scope of the activities or practices.
• The broker's cooperation with other brokers, including the sharing of fees.
Any sales agreement must contain the zoning classification of a property except in cases where the
property is zoned solely or primarily to permit single family dwellings.
A Real Fztate Recovery Fund exists to reimburse any person who has obtained a final civil judgment
against a Pennsylvania real estate licensee owing to fraud, misrepresentation, or deceit in a real estate
transaction and who has been unable to collect the judgment after exhausting all legal and equitable
remedies. For complete details about the Fund, call (717) 783-3658.
39 76M
1`
I certify that I have provided this document.to the above consumer.
Date: t•
Print (Licensee)
Signed (Licensee)
Adopted by the State Real Estate Cohimission at 49 Pa. Code §35.336.
40
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EXHIBIT "C"
SI RLIN GALLOGLY & LESSER
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
1014 C. SIRLIN
TIMOTHY A. CALLOGLY
PETER A. LESSER •
JOHN D. BENSON
SUSAN 1. KUPERSMITH «+
DANA S. PLON
DOROTHY ANNE HAMILL «
LISA M. RUTENBERG •"'•
JERRY 1. DREW**
KIERSTIN M. LANCE •
ADAM NACHMANI '
'COUNSEL
-PA • NI !A0.
"PA • NY !AR
•••PA.141 • MD
PERSONAL & CONFIDENTIAL
Terri Matthews and Jennifer Scott d/b/a
California Fusion
378 E. Penn Drive
Enola, PA 17025
l?-AG6 `
PENNSYLVANIA OFFICE
1529 WALNUT STREET
SUITE 600
PHILADELPHIA, PA 19102
( 215) 864-9700
FAX (215) 864-9669
NEW JERSEY OFFICE
102 BROWNING LANE
BUILDING C
CHERRY HILL,NI 08003
(856) 616-1900
FAX (856) 216-7459
July 8, 2008
PERSONAL & CONFIDENTIAL
Terri Matthews and Jennifer
Scott d/b/a California Fusion
43 Lee Ann Court
Enola, PA 17025
Re: Cedar Pennsboro LP - Terri Matthews and Jennifer Scott d/b/a California
Fusion
DEFAULT NOTICE
Our File No. 14991
Dear Tenants:
Please be advised that Sirlin Gallogly & Lesser, P.C. represents the Landlord at the
Pennsboro Commons Shopping Center. I have been advised by my client that you are in default
of your Lease dated June 15, 2005 for failing to pay rent and proper charges as of the date hereof
in the amount of $34,936.21.
This letter will serve as notice of default pursuant to Paragraph 18.01 of the Lease.
Unless the arrearage plus legal fees in the current amount of $750.00 is paid in full within five
(5) days from the date of this letter, I have been instructed to commence appropriate legal action
against you without further notice or delay. Judgment by Confession will be entered against you
in the Court of Common Pleas and it is our intention to seek the principal amount of the debt,
plus interest, costs, applicable attorneys' fees, possession of the premises and/or accelerated rent
through the remainder of the lease term. Execution will commence pursuant to the law.
SIRLIN GALLOGLY 8 LESSER, P.C.
Please avoid the expense and inconvenience of litigation and execution by making
immediate payment.
Sincerely,
Peter A. Lesser
PAL/dp
Via Certified and Regular Mail
cc: Brenda Walker
r,s
N
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Cedar- Pennsboro Commons LLC CIVIL ACTION - LAW
successor in interest to Cedar-Pennsboro
LLC by its Agent; Cedar Shopping
Centers Partnership LP
Plaintiff,
No. 2008-6140
V.
Terri Matthews individually and
d/b/a California Fusion
Defendant.
SUGGESTION OF BANKRUPTCY
Defendant, Terri Matthews, through her undersigned attorneys, Gates, Halbruner &
Hatch, P.C., and would show the Court:
1. Defendant has filed a petition for relief under Title 11, United States Code, in
the United States Bankruptcy Court for the Middle District of Pennsylvania, which bears the case
number 1-08-03864.
2. Relief was ordered on October 21, 2008.
3. This action is founded on a claim from which a discharge would be a release or
that seeks to impose a charge on the property of the estate.
4. This is for informational purposes only, and does not constitute a notice of
appearance by the undersigned.
WHEREFORE, the defendant suggests that this action has been stayed by the operation
of 11 U.S.C. § 362.
Respectfully Submitted,
GATES, HALBRUNER & HATCH, P.C.
Sarah E. McCarroll
Attorney ID No. 91102
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
DATE: October 23, 2008
CERTIFICATE OF SERVICE
I, Sarah E. McCarroll, Esquire, hereby certify that a true and correct copy of the foregoing
uggestion of Bankruptcy, has been served upon the following counsel of record by first class
r tail, postage prepaid, addressed as follows:
Peter A. Lesser
Sirlin Gallogly & Lesser, P.C.
1529 Walnut Street
Suite 600
Philadelphia, PA 19102
GATES, HALBRUNER & HATCH, P.C.
Sarah E. McCarroll
Attorney for Debtors
E ATED: October 23, 2008
:tea
-
c
a
CL)
{yam ;.? f
Peter A. Lesser, Esquire
Dana S. Plon, Esquire
dplon@sirlinlaw.com
Identification No. 59433/80361
SIRLIN LESSER & BENSON, P.C.
123 South Broad Street, Suite 2100
Philadelphia, PA 19109
{215) 864-97J0
CEDAR-PENNSBORO COMMONS, LP
Successor in interest to
CEDAR-PENNSBORO, LLC
Agent: Cedar Shopping Centers
Partnership, L.P.
v.
TERRI MATTHETaS individually and
d/b/a CALIFO:~NIA FUSION
TO THE COURT,
^Erj7r ~ n r 1
r.;c~x:~.~ ~fR ~~
~,~,~5~'L~~P~$,.~ ,~
Attorney for Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 08-6140
o't`~
nvnsrv mn vnnamt. .~rrmr±~.rr i-^`-^~" ~ ~~~
Kindly VACATE the judgment against defendant, Terri Matthews,
individually and d/b/a California Fusion, upon payment of your costs
only.
PETE LESSER
S. PLON
Attorney for Plaintiff
November 12, 2012