HomeMy WebLinkAbout11-6746SIRLIN GALLOGLY & LESSER, P.C.
123 South Broad Street, Suite 2100
Philadelphia, PA 19192
(215) 864-9700
By: Peter A. Lesser, Esquire
Identification No. 59433
CEDAR-PENNSBORO LP
By Its Agent: Cedar Shopping Centers
Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
V.
BRITT JOHN ENTERPRISES INC.
d/b/a CLASS ACT DRYCLEANERS
1430 Garalyn Road
Harrisburg, PA 17110
tvFD-OFFICE
tO HO?NOTARY
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Attorneys for Defendant
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
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NO.
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, BRITT JOHN
ENTERPRISES INC d/b/a CLASS ACT DRYCLEANERS, above named:
I hereby confess Judgment in favor of Plaintiff and against Defendant by virtue of
the Warrant of Attorney contained in the Lease attached hereto and assess damages as follows:
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SIRLIN GALLOGLY & LESSER, P.C.
123 South Broad Street, Suite 2100
Philadelphia, PA 19192
(215) 864-9700
By: Peter A. Lesser, Esquire
Identification No. 59433
PD-OFFICE
"L sr .OTHONOTARY
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,!",,3ERLAN0 COUNTY
)ENNSYLVANIA
Attorneys for Defendant
CEDAR-PENNSBORO LP
By Its Agent: Cedar Shopping Centers
Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
V.
BRITT JOHN ENTERPRISES INC.
d/b/a CLASS ACT DRYCLEANERS
1430 Garalyn Road
Harrisburg, PA 17110
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. ''_ ??y?1 Una
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, BRITT JOHN
ENTERPRISES INC d/b/a CLASS ACT DRYCLEANERS, above named:
I hereby confess Judgment in favor of Plaintiff and against Defendant by virtue of
the Warrant of Attorney contained in the Lease attached hereto and assess damages as follows:
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SIRLIN GALLOGLY & LESSER, P.C.
123 South Broad Street, Suite 2100
Philadelphia, PA 19192
(215) 864-9700
By: Peter A. Lesser, Esquire
Identification No. 59433
l'J + t '3
'u',-0ERLAN9 COUNTY
r E NSYLVANIA
Attorneys for Plaintiff
CEDAR-PENNSBORO LP
By Its Agent: Cedar Shopping Centers
Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
V.
BRITT JOHN ENTERPRISES INC.
d/b/a CLASS ACT DRYCLEANERS
1430 Garalyn Road
Harrisburg, PA 17110
NO. 1/,6 7??
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 July 29,
1997.
1. Plaintiff is CEDAR-PENNSBORO, 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 Pennsboro Commons
Shopping Center located at 324 E. Penn Drive, Enola, PA 17025 having purchased it from the
prior owners William F. Rothman, Charles F. Schubert and Samuel L. Reed Co-Partners d/b/a
Rothman Schubert & Reed.
2. Defendant is BRITT JOHN ENTERPRISES INC. d/b/a CLASST ACT
DRYCLEANERS, a Pennsylvania corporation. The corporate registered address of Defendant
is 1430 Garalyn Road, Harrisburg, PA 17110.
3. On or about December 31, 2001, the predecessor of Plaintiff and
Defendant entered into a Lease for the rental of approximately 1,200 square feet of commercial
space at the Pennsboro Commons, 324 E. Penn Drive, Enola, PA 17025 for a term of ten (10)
years which will expire on December 31, 2011. 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 $1,905.63 plus Common Area Maintenance charges, insurance charges and
Real Estate Taxes.
5. Defendant is in default of the terms of the Lease.
Defendant has failed to pay rent and proper charges as of July 13, 2011 in
the amount of $16,756.66, as set forth on the Tenant Ledger attached as Exhibit "B" and made a
part hereof.
6. Defendant is also in default of the terms of the Lease for prematurely
vacating the premises on or about June 18, 2011.
7. Despite repeated demands; Defendant has refused and continues to refuse
cure the default.
8. By letter to Defendant dated May 4, 2011, Plaintiff provided a written
notice of default to Defendant. A true and correct copy of said letter is attached hereto as Exhibit
2
"C" and made a part hereof.
9. The balance due pursuant to the Lease as of July 13, 2011 is $18,432.32
which represents unpaid rent and proper charges specifically set forth in Paragraph 5 above in the
amount of $16,756.66 together with an attorneys' commission of 10% in the amount of
$1,675.66.
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 $16,756.66 or attorneys' commission of 10% in the amount of $1,675.66.
14. Judgment is demanded as authorized by the Warrant of Attorney contained
in Exhibit "A".
15. The Warrant appearing in the attached Lease Agreement 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 $18,432.32 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, Defendant is
also 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
August 1, 2011 through December 31, 2011. Accelerated rent and additional rent is calculated in
the amount of $11,148.29.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the
amount of $11,148.29 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 $29,580.61 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.
SIRLIN GALLOGLY & LESSER
BY:
PETER A. LESSER, ESQUIRE
Attorney for Plaintiff
4
AFFIDAVIT OF BUSINESS TRANSACTION
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 LP; 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 Subscribed
before me this 9 day
of , 2011.
Notary Public
l
Notary Public, State of New York
No. 02GR6130150
Qualified in New York County
Commission Expires July 11, 2013
BREN A J. W R
AFFIDAVIT
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 LP; 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.
BRE DA J. W R
Sworn to and Subscribed
before me this IF day
of , 2011.
Notary Pu lic
LISA GREENBAUM
Notary Public, State of New York
No. 02GR6130150
Qualified in New York County
Commission Expires July 11, 2013
7i
yt.,
AFFIDAVIT
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 LP; 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.
Sworn to and Subscribed
before me this 6 day
of , 2011.
-Al?
Notary Public
USA GREENBAUM
Notary Public, State of New York
No. 02GR6130150
Oualified in New York County
Commission Expires July 11, 2013
BRE DA J. W R
rC
AFFIDAVITNERIFICATION
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 LP; 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.
B DA J. KER
Sworn to and Subscribed
before me this g day
of 3mb_
, 2011.
Notary Public
USA GREENBAUM
Notary public, State of New Yofk
No. o2GR6130150
Qualified in New York County
Commission Expires Ju1Y 11, 2015
y.- ? y
„' .:i'.
«3 1.1y1 .y4.
AVERMENT OF DEFAULT
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 LP; and that she is authorized
to make this Affidavit on behalf of Plaintiff-
On or about December 31, 2001, the predecessor of Plaintiff and Defendant
entered into a Lease for the rental of approximately 1,200 square feet of commercial space at the
Pennsboro Commons, 324 E. Penn Drive, Enola, PA 17025 for a term of ten (10) years which
will expire on December 31, 2011. 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 $1,905.63 plus Common Area Maintenance charges, insurance charges and Real
Estate Taxes.
Defendant is in default of the terms of the Lease.
Defendant has failed to pay rent and proper charges as of July 13, 2011 in the
amount of $16,756.66, as set forth on the Tenant Ledger attached as Exhibit "B" and made a part
hereof.
Defendant is also in default of the terms of the Lease for prematurely vacating the
premises on or about June 18, 2011.
.. :9 , • a
Despite repeated demands; Defendant has refused and continues to refuse cure the
default.
By letter to Defendant dated May 4, 2011, Plaintiff provided a written notice of
default to Defendant. A true and correct copy of said letter is attached hereto as Exhibit "C" and
made a part hereof.
The balance due pursuant to the Lease as of July 13, 2011 is $18,432.32 which
represents unpaid rent and proper charges specifically set forth in Paragraph 5 above in the amount
of $16,756.66 together with an attorneys' commission of 10% in the amount of $1,675.66.
Accordingly, as provided by Section 18.01(1) of the Lease, Defendant is also
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 August 1,
2011 through December 31, 2011. Accelerated rent and additional rent is calculated in the amount
of $11,148.29.
BRENDA J. KER
Sworn to and Subscribed
before me this J9- day
of , 2011.
(j 6
Notary blic
USA GFOO M N
WWV Pubft Stele Of New
NO.02GRO130150
OUG"W in New York COU
Comml?ion E*M& July 11,11
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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 LP; and that she is authorized to
make the following Affidavit on behalf of Plaintiff:
Affiant certifies that the corporate registered address of Defendant is 1430 Garalyn
Road, Harrisburg, PA 17110 and the business address of judgment creditor Plaintiff is 44 South
Bayles Avenue, Suite 304, Port Washington, NY 11050.
Sworn to and Subscribed
before me this J?' day
of , 2011.
No y Public
LISA GRLb14-,u1,
Notary Public, State of New York
No. 02GR6130150
Quallfled in New County
Commission Expires July 11, 2013
VL
BREN A J. WAhVE#
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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 LP; 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 corporate registered address of Defendant is 1430
Garalyn Road, Harrisburg, PA 17110 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 1j' day
of '2011.
10 C
Notary ublic
USA GREENBAUM
NoWy Public, State of New York
No. 02GR6130150
Oual fied In New York County
COenMISSIM Expim July 11. 2013
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BRENDA J. WAlkER
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EXHIBIT "A"
LEASE AGREEMENT
PENNSBORO COMMONS SHOPPING CENTER
LEASE AGREEMENT
WITNESSETH, that in consideration of mutual covenants, Owner and Tenant hereby agree as
follows:
SECTION A BASIC LEASE PROVISIONS AND FMTMERATION OF EXHIBITS
Section A-1 Basic Lease Provisions.
DATE: December 3 t, 001
A
SHOPPING
CENTER: Pennsboro Commons Shopping Center
Cumberland County, Pennsylvania
OWNER: William F. Rothman, Charles F. Schubert & Samuel L. Reed, Co-Partners, t/d/b/a
Rothman, Schubert & Reed, a Pennsylvania General Partnership
308 East Penn Drive, Enola, PA 17025-2158
TENANT: Brittjohn Enterprises, Inc. t/d/b/a Class Act Drycleaners
TENANT'S ADDRESS: ??2#-Easter- " , t' ' , v i , ems n
P??,:°Bn?c 601'3'6; ?iaimsbt?g°P? I'77'Ot"i`='OI215`
TENANT'S PHONE NUMBER:
TENANT'S
TRADE NAME:
LEASED
PREMISES:
LEASED TERM:
RENEWAL TERM:
Class Act Drycleaners
The Premises outlined in red on Exhibit A containing approximately 1,200 square
feet of Gross Leasable Area and identified as Block B, Section 3 with an address
of 324 E. Penn Drive, Enola, PA.
Ten (10) Years.
One (1), five (5) Year option.
PERMITTED
USES: Dry cleanirng drop shop and laundry services.
ANNUAL
MINIMUM RENT: During the Lease Terms, Tenant shall pay to Owner, as Annual Minimum Rent the
following:
Years 1, 2 and 3, the sum of Nineteen Thousand Two Hundred Dollars ($19,200.00)
per annum or $1,600 per month, subject to an abatement of rent for the first three
(3) months of Year 1.
Years 4, 5 and 6, the sum of Twenty Thousand Three Hundred Fifty-Two Dollars
($20,352.00) per annum or $1,696.00 per month, which reflects a 6% increase over
the preceding three years.
Years 7, 8 and 9, the sum of Twenty-One Thousand Five Hundred Seventy-Three
and 12/100 Dollars ($21,573.12) per annum or $1,797.76 per month, which reflects
a 6% increase over the preceding three years.
Year 10, the sum of Twenty-Two Thousand Eight Hundred Sixty-Seven and 51/100
Dollars ($22,867.51) per annum or $1,905.62 per month, which reflects a 6%
increase over the preceding three years.
The Annual Minimum Rent for the renewal term(s), if any, shall be the amount set
forth in Lease Year 10 increased by six (6%) every three (3) years.
INITIAL ESTIMATED
COMMON FACILITIES
CONTRIBUTION FOR
TENANT: $1,200 per calendar year ($100.00 per month) (subject to adjustment as set forth in
Article VII of this Lease)
INITIAL ESTIMATED
TAX CHARGE FOR
TENANT: $732.00 per tax year ($61.00 per month) (subject to adjustment as set forth in
Article VI of this Lease)
INITIAL ESTIMATED
INSURANCE CHARGE
FOR TENANT: $96.00 per calendar year ($8.00 per month) (subject to adjustment as set forth in
Article X of this Lease)
SECURITY DEPOSIT: Upon execution of this Lease, Tenant shall deposit the sum of $1,600.00 with
Owner to secure the performance of the obligations of Tenant herein contained.
Owner acknowledges receipt of Tenant's deposit. In the event Tenant terminates
2
this Lease as provided herein on March 31, 2002, Tenant agrees that the security
deposit is forfeited.
Section A-2. Fffect of Reference to a Basic Lease Provision.
Each reference in this Lease to any of the Basic Lease Provisions contained in Section A-I shall be
deemed to incorporate all of the terms provided under each such Basic Lease Provision.
Section A-3 Enumeration 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 A-1 Legal Description of Owner's Tract
Exhibit B Rules and Regulations
Exhibit C Guaranty of Lease
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.
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 "Common Facilities" (as defined in Section 7.02) shown on Exhibit A, and such other
Common Facilities as may be designated from time to time by Owner, subject, however, to the provisions
of Section 4.02 and 7.04 and to the other terms and conditions of this Lease.
The term of this Lease shall commence upon December 31, 2001 (the "Commencement Date").
Tenant's obligation to pay the Annual Minimum Rent shall commence April 1, 2002. Tenant at all times
shall be obligated to pay monthly payments for Common Facilities Contribution, real estate taxes and
insurance as provided in Section A-1 and Articles VI, VII and X herein. The term of this Lease shall expire,
unless sooner terminated as provided in this Lease, on the last day of the last "Leased Year" (as defined in
Section 23.04) provided under "Lease Term" in Section A-1 of the Basic Lease Provisions. In order to
extend the Leased Term as provided under "Renewal Term" in Section A-1 of the Basic Lease Provisions,
Tenant shall give Owner at least 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.
Tenant reserves the right to terminate this Lease Agreement effective 11:59 p.m. on March 31,
2002, provided Tenant has given Owner at least 15 days written notice of Tenant's intention to terminate the
Lease. If Tenant does not terminate this Lease on March 31, 2002 then Tenant's Annual Minimum Rent
shall commence April 1, 2002 at such rate and under such terms as set forth in Section A-1, Annual
Minimum Rent.
Furthermore, in the event that Giant Food Stores, LLC (or its parent entity, Koninklijke Ahold N.V.)
ceases, for any reason, to occupy and do business at its rental space within the Shopping Center for thirty
(30) days or more days, then Tenant may terminate this Lease upon sixty (60) days written notice to Owner.
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 subject to the abatement of rent for the first three (3) months as
more fully set forth herein. Annual Minimum Rent for a fractional calendar month shall be prorated.
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". Notwithstanding anything herein to the
contrary, Tenant enjoys abatement of Tenant's Tax Charge, Tenant's Common Facilities Contribution, and
Tenant's Insurance Contribution for the first three (3) months of Lease Year 1.
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
Section 23.04) on the arrearages from the due date thereof until paid.
AR. iC . , ITT - RECORDS; REPORTS AND AUDIT (INTENTIONALLY OMITTED)
4
Section 4 .01 Owner's and Tenant's Work_
(A) Owner is not obligated herein to provide any construction to the Leased Premises. The
parties acknowledge that the Leased Premises was previously used for a dry cleaning business, and all of
Tenant's required construction work shall be provided by Tenant with the approval of Owner. 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 attic
space, column space or other similar areas of the Leased Premises, and to repair, alter, replace or remove the
same, all in a manner. that 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.
Notwithstanding anything set forth in this Lease to the contrary, it is agreed that Owner reserves the
right, without invalidating this Lease or modifying any provision thereof except Exhibit A, at any time either
before, during or after the initial construction thereof, (i) to make alterations, changes, deletions and
additions (including additional stories) to the buildings, Common Facilities and other improvements in the
Shopping Center (excluding the interior of the Leased Premises); (ii) to add and permit to be added
additional land(s) to the Shopping Center and to exclude land(s) therefrom; (iii) to construct and to permit
to be constructed additional buildings and other improvements in the Shopping Center; (iv) to remove or
relocate the whole or any part of any building or other improvement in the Shopping Center; and (v) to
relocate the premises leased to any other tenant. PROVIDED, HOWEVER, the foregoing shall not be
construed as permitting Owner to change the location of the Leased Premises.
Tenant shall operate the Leased Premises under the "Trade Name", if any, specified in Section A-1
of the Basic Lease Provisions and shall use the Leased Premises solely for the "Permitted Uses" specified
therein and for no other use or purpose whatsoever. Tenant shall not permit any business to be operated in
or from the Leased Premises by any concessionaire or licensee without the prior consent of Owner.
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; and (ii) keep the Leased Premises open for business and the signs therefore lighted eighty (80)
hours per week, with the goal of 7:00 a.m. until 7:00 p.m., Monday through Saturday, and 9:00a.m. until 5:00
p.m. on Sunday (local time then current).
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.
Deliveries may be made to the rear entrance of the Leased Premises.
(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) that may be levied, assessed or imposed or become liens upon the Shopping
Center, or which arise out of the use, occupancy or possession of the Shopping Center (land, buildings and
permanent improvements) from time to time. The term "Taxes" shall not, however, include inheritance,
estate, succession, transfer, gift, franchise, corporation, income or profit tax imposed upon Owner, nor
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'therew.
(B) The term "Tax Ye " shall mean the 12 month period established as the real estate tax year
by the taxing authorities having.jurisdiction over the Shopping Center.
(C) The term "Tenant's Tax Charge" shall mean an amount equal to the product obtained by
multiplying the sum of the Taxes for each Tax Year plus all costs, expenses and reasonable attorneys' fees
incurred by Owner in contesting any Taxes during such Tax Year (which Owner may do at its option) by
"Tenant's Percentage Share" (hereinafter defined in Section 23.04) as of the date the Taxes for such Tax Year
are assessed. For the Tax Year in which this Lease commences or terminates, Tenant's Tax Charge shall be
prorated.
(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 to Tenant a copy of all tax
bills for such Tax Year and shall certify to Tenant the amount of Tenant's Tax Charge; thereupon 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 noway excuse the Tenant
6
from its obligations to pay any underpayment or constitute a waiver of Owner's right to bill and collect such
underpayment from Tenant in accordance with this paragraph.
(E) Tenant shall pay (or reimburse Owner upon demand if the same are levied against Owner
or the Shopping Center), before delinquency, any and all taxes, assessments, license fees and public charges,
of whatever kind or nature, levied or assessed during the term by any governmental authority against
Tenant's business in the Leased Premises and the fixtures, furniture, 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.
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.
. . (A) The term "Onerati 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); fees for required
licenses; personal property taxes; all Taxes levied, assessed or imposed or which may become a lien on the
Common Facilities or which may arise out of the use thereof; line painting; the repair and maintenance of
the roof and finished ceiling (including lighting) of all Shopping Center canopies; operating of loudspeakers
and other equipment supplying music; sanitary control; security services (if any); sewer service charges;
removal of ice, snow, trash, rubbish, debris, garbage and other refuse (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 (10%) 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 "Operating Cost" shall also include any municipal improvements required by the
local municipality to be made to and on the Common Facilities including but not limited to traffic signals,
7
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 actual, incurred 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; sidewalks; 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 sewer lines which Owner is required to maintain), gas, electric, telephone and other
utility lines, systems, conduits and facilities to the perimeter walls of any building (even though intended
for the use of only one or a limited number of occupants) and those within. a building serving more than one
premises, and any of the foregoing which serve the Common Facilities; on or off-site water detention and
retention ponds, facilities and systems; on-site trash compactor; plantings; landscaped areas; truck service
ways or tunnels; loading dock areas and facilities; the roof and finished ceiling (including lighting) of all
Shopping Center canopies; courts; ramps; sidewalks; comfort and first aid stations; washrooms; parcel pick-
up stations; any Shopping Center pylon sign; drinking fountains; vertical transportation equipment (including
elevators and escalators); auditoriums; community centers; bus stations; and the facilities appurtenant to each
and all of the foregoing.
(A) Tenant's Common Facilities Contribution shall be paid in monthly installments on the first
day of each calendar month during the term in advance, in an amount reasonably. estimated by Owner.
Owner's estimate of Tenant's Common Facilities Contribution for the calendar year in which this Lease
commences is set forth in Section A-1 of the Basic Lease Provisions. Within 90 days after the end of each
calendar year during the term, Owner shall 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 then shall 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
that 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 outside the control of the Owner, the Owner shall give Tenant prompt written notice of
any municipal improvements or repairs upon Owner's receipt of such notice from the municipality.
Notwithstanding anything set out in this Lease to the contrary, it is agreed that (i) all Common
Facilities shall be subject to the exclusive control and management of Owner, and Owner may permit the
owners or occupants of land located outside the Shopping Center and their invitees to use the Common
Facilities; (ii) Owner..shall have the right to temporarily close all or any portion of the Common Facilities
(including parking areas); (iii) Owner shall be required to keep the parking areas lighted from dusk to dawn
and not during any daylight hours, and (iv) Owner shall have the right to do and perform such other acts in
and to the Common Facilities as Owner shall determine to be advisable with a view to the improvement of
the convenience and use thereof by tenants of the Shopping Center and their customers, including the right
to permit,,in Owner's sole discretion, promotions in and decorations of the sidewalks and parking areas;
PROVIDED, HOWEVER, Owner. shall maintain the Common Facilities in the Shopping Center in
reasonably good order, condition and repair, and shall keep the parking 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.
Tenant shall not make or cause to be made any alterations, additions or improvements in or to the
Leased Premises without submitting to Owner plans and specifications therefor and obtaining Owner's
consent thereto.
(A) On the last day of the term or on the sooner termination thereof, Tenant shall (i) subject to
the provisions of Articles XVI and XVII, peaceably surrender the Leased Premises broom clean and in good
order, condition and repair except for reasonable wear and tear; (ii) at its expense remove from the Leased
Premises the signs, moveable furniture. and trade fixtures (including, without limitation, molly-bolts, screws
and other items inserted into the walls of the Leased Premises) which were furnished and installed by Tenant
at Tenant's sole expense ("Tenant's Prof") 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, except with regard to any
equipment, fixtures and appurtenances situate in the Leased Premises as of the Commencement Date.
(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
9
work to Tenant, or anyone holding all or any part of the Leased Premises under Tenant, to file a stipulation
against liens pursuant to § 1402 'of the Pennsylvania Mechanics' Lien Law of 1963 (49 P.S. § 1401, dstq.).
(B) Tenant shall not suffer any mechanics' or materialmen's lien to be filed 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 at any time any such lien
shall be filed as aforesaid, Tenant may contest the same in good faith but notwithstanding such contest,
Tenant shall, within 1.5 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 reasonably necessary to have said liens
released. In such event, Tenant agrees to reimburse the Owner for all costs incurred by the Owner, including
attorneys' fees. A failure by the Tenant to reimburse the Owner these costs shall be a default by Tenant
pursuant to Article XVIII.
(C) Tenant shall not create or suffer to be created a security interest or other lien against any
improvements, additions or other construction made by Tenant in or to the Leased Premises or against any
equipment or fixtures installed by Tenant therein (other than Tenant's Property).
Section 8.04. Tenant's Sign„
Tenant shall not install any sign, billboard, marquee, awning, placard, lettering, advertising matter
or other thing of any kind, whether permanent or temporary, on the exterior of the Leased Premises, or in
or on any glass window, window showcase, or door of the Leased Premises until the same has been approved
by the Owner in writing. Owner has the right to control the size, location, design and materials of the same
for the purpose of establishing and maintaining the uniformly aesthetic appearance of the Shopping Center.
ARTICLE IX - MAINTENANCE OF LEASED PREMISES; MILES AND REGULATIONS
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 (i) feature lighting, (ii) windows, including sashes,
(iii) heating, ventilating and air conditioning equipment and sewer and other lines serving the Leased
Premises exclusively, (iv) doors, including frames, locks, hardware and track, (v) store front of the Leased
Premises, and (vi) signs and other equipment referred to in Section 8.04], including without limitation, 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 and not otherwise made a part of the Operating Costs and included in the Common Facilities
Contribution], in conformity with all rules and regulations of Owner's hazard insurer, neat and clean and in
good order, condition, maintenance and repair. Tenant shall also at its cost procure and maintain in the
Leased premises all safety appliances required by Owner's hazard insurer to be maintained therein. Tenant
shall replace any and all plate, window and other glass (structural or otherwise) in, on or about the Leased
Premises, which may be broken or destroyed, with glass of the same or similar quality. 'Before undertaking
10
repairs to the Leased Premises (other than minor interior non-structural repairs), Tenant shall first obtain
Owner's approval of the plans and specifications therefor, which approval is not to be unreasonably
withheld. Owner shall authorize one<l) heating and air conditioning contractor who shall provide a
complete service and maintenance contract to Tenant who shall be the named party on the contract for the
changing of filters at least once per month, the monthly inspection of the HVAC equipment serving the
Leased Premises, including a written report of the condition there of to be provided to Owner and Tenant,
the periodic oiling of the equipment where required, the tightening of belts, the filling of pitch pans and the
sealing of water leaks, among other things. The service and maintenance contract and its related costs shall
be the sole cost and expense of the Tenant. The existence of a service contract with an Owner-approved
vendor shall not relieve Tenant of its obligations to maintain and repair such equipment as above provided>
Subject to the provisions of Articles XVI and XVII and to the obligations of Tenant under the
provisions of Sections 9.0 1, the foundations, roof (excluding interior ceilings), and exterior portions of the
exterior walls (excluding store front) of the Leased Premises shall be maintained, repaired, and replaced by
Owner at its expense in good order, condition, maintenance and repair. Owner shall not be deemed to have
breached its obligation to make the repairs required of Owner as set forth in this Section, or to be liable for
any damages resulting therefrom, unless Owner fails to make the same within a reasonable period (taking
into consideration the type of repair involved) after receiving notice from Tenant of the need therefor.
Tenant agrees to comply with and observe the rules and regulations set forth in Exhibit B. 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.
Tenant shall keep 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+:X\/ ("Qualifie
.arri r"), a policy of comprehensive public liability insurance, including property damage, with respect to
the Leased Premises and the business operated by Tenant and any other occupant of the Leased Premises,
in which the limits of coverage shall not be less than $3,000,000.00 (combined single limit bodily injury and
property damage). 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
provide Owner with a certificate of such insurance (the first of which shall be provided prior to
commencement 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 10.02 may be covered under a so-called "blanket" policy covering other stores
of Tenant and its affiliates.
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
11
the standard forms, insuring all of Tenant's Property 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 Tenant. The foregoing policy of insurance shall
be issued in favor of and in the names of Owner and Tenant, as their interests may appear, and Tenant shall
furnish Owner and the holder of any mortgage on the Leased Premises with a certificate evidencing such
coverage, which certificate shall provide that the insurance shall not be canceled, materially amended or
allowed to lapse without thirty (30) days' prior written notice thereof being given by the insurance carrier
to Owner.
Section 10,03- Insurance on Buildings and Improvements in h Shop i ng 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 thereupon 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. Indemnification.
Tenant will, subject to the provisions of Section 10.05, indemnify, save harmless and defend Owner
and its officers, agents and servants, from and against any and all claims, actions, liability and expense in
connection with loss of life, bodily injury and/or damage to property arising from or out of any occurrence
12
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 wholly or
in part, by the willful or negligent act or omission of Owner, its agents, employees or servants.
Section 10-05. Waiver of Subrogation; Limitation of Liability,
(A) Anything in this Lease to the contrary notwithstanding, it is agreed that each party (the
"Releasing Party") heieby 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 Party during the term of this Lease,
resulting from the occurrence of any accident or occurrence or casualty (i) which is or would be covered by
an "all-risk" policy (irrespective of whether such coverage is being carried by the Releasing Party), or (ii)
covered by any other casualty or property damage insurance being carried by the Releasing Party at the time
of such occurrence, which accident, occurrence or casualty may have resulted in whole or in part from any
act or neglect of the Released Party, its officers, agents or employees; PROVIDED, HOWEVER, the release
hereinabove set forth shall become inoperative and null and void if the Releasing Party wishes to place the
appropriate insurance with an insurance company which (a) takes the position that the existence of such
release vitiates or would adversely affect any policy so insuring the Releasing Party in a substantial manner
and notice thereof is given to the Released Party, or (b) requires the payment 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 solely from the willful or negligent act or omission of any other tenant or
occupant of the Shopping Center.
Section 10.06. Notice by Jenant.
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.
=ARTI L . XI - T TILITIES
Section 11.01. Utility Chaxges.
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 event that separate service arrangements cannot be provided for any of the above, then the
Tenant agrees to pay its proportionate share of the utility charges which shall be collected as part of the
Common Facilities Contribution set forth in Article VII herein.
Section 11 02 Owner's L.iability for Inta tion.
Owner shall not be liable in any way to Tenant or to any other party occupying any part of the
Leased Premises for any failure or defect in or of any utility service furnished to the Leased Premises or the
Common Facilities, by reason of any requirement, act or omission of the public utility company serving the
13
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.
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 and reasonably used by such proposed mortgagee or purchaser, evidencing the status
of performance under this Lease and the terms of this Lease. Tenant agrees, within 10 days after written
request by Owner, to deliver to Owner a current financial statement of Tenant, duly certified by an officer
thereof (if Tenant is a corporation) and an independent certified public accountant and such other financial
information of Tenant as Owner shall reasonably request.
Tenant shall, in the event any proceedings are brought for the foreclosure of, or in the event of the
exercise of the power of sale under, any mortgage made by Owner covering any part of the Shopping Center,
or in the event of any sale of the Shopping Center, 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 attornment provided for in this Section.
Upon writteri 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.
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
and reasonably used by such encumbrance holder, by the terms of which Tenant will agree to give prompt
notice to such encumbrance holder in the event of any casualty damage to the Leased Premises or in the
event of any default on the part of Owner under this Lease, and will agree to allow such encumbrance holder
a reasonable length of time (taking into consideration for the purpose of determining such permitted length
of time any delays encountered by reason of any of the causes referred to in Section 23.02), after notice to
cure or cause the curing of such default before exercising Tenant's rights of self-help under this Lease, if any,
or by statute or at law, or terminating or declaring a default under this Lease. In. addition, within 10 days
after demand by the holder of any such mortgage or after demand by owner, Tenant shall deliver to such
14
encumbrance holder a current financial statement of Tenant and such other financial information as such
holder or Owner shall reasonably request.
ARTIC F )(III -ASSIGNMENT, SUBLETTING AND CORPORATE OWNERSHIP
Section 13.01. Consent Required.
(A) Tenant shall not voluntarily, involuntarily or by operation of law assign or encumber this
Lease, in whole or in part, nor sublet all or any part of the Leased Premises without the prior consent of
Owner in each instance. Notwithstanding any assignment or subletting, Tenant shall remain fully liable
under this Lease and shall not be relieved from performing any of its obligations hereunder. As a condition
to any assignment of this Lease by Tenant which is 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 such times
as the Assignee shall have agreed to pay Tenant, an amount equal to any consideration the Assignee shall
have agreed to pay Tenant on account of such assignment. If Assignee shall fail to pay Owner any such
consideration when due, such failure shall constitute a default under this Lease.
(C) If Tenant shall request Owner's consent to a subletting of the Leased Premises or any part
thereof and Owner shall consent thereto, Tenant shall pay Owner, as additional rent, in addition to the
Annual Minimum Rent and other charges payable hereunder, an amount equal to any consideration paid by
the subtenant to Tenant in excess of (i) the Annual Minimum Rent and other charges payable hereunder if
all of the Leased Premises are so sublet or (ii) if less than all of the Leased Premises are so sublet, the Annual
Minimum Rent and other charges payable hereunder allocable to the portion of the Leased Premises so sublet
based on the number of square feet of Gross Leasable Area in the Leased Premises so sublet divided by the
total number of square feet of Gross Leasable Area in the Leased Premises prior to such subletting. The
foregoing amount shall be determined monthly and paid by Tenant to Owner on the first day of each calendar
month; in advance during the term of such sublease. If Tenant shall fail to pay Owner any such consideration,
such failure shall be a default under this Lease.
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. There is excluded from the scope and
effect of this Section 13.02 any transfer of voting stock of Tenant to any individual related, by blood or
marriage, to the transferor shareholder.
Section 13.03 Owner's Right to Assign.
If Owner conveys or transfers its interest in this Shopping Center or in this lease (which sale or
transfer may be effected without Tenant's consent), upon such conveyance or transfer, Owner (and in the case
of any subsequent conveyances or transfers, the then grantor or transferor) shall be released of and from all
liability'-with respect to the performance of any covenants and obligations on the patt=.of Owner to be
15
performed after the date of such conveyance or transfer; it being intended hereby that the covenants and
obligations on the part of Owner to be performed under this Lease shall, subject to the provisions of Section
21.01, be binding on Owner, its successors and assigns, only during and in respect of their respective periods
of ownership of an interest in the Shopping Center or in this Lease.
Tenant shall not commit or suffer to be committed (i) any waste in or upon the Leased Premises or
(ii) any nuisance or any other act or thing (whether a nuisance or otherwise) that may disturb the quiet
enjoyment of any other tenant or occupant in the Shopping Center or its or their customers or other invitees.
(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 limited to material defined as such in, or for
purposes of, the Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), as amended by the Superfund Hazardous Materials Transportation Act (49 U.S.C. § 1802 et
seq.), the Resource Conservation and Recovery Act ("RCRA") (42 U.S.C. § 1802, sits q.), the Federal Water
Pollution Control Act (33 U.S.C. §1251, et seq.), the Safe Drinking Water Act (42 U.S.C. §300(f), rA=gl),
the Toxic Substance Control Act (15 U.S.C. §2601, et sue}.), the Clean Air Act (42 U.S.C §7401, ti seq.), or
any other federal, state or:local statute, ordinance, code, rule, regulation, order or decree regulating, relating
to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste,
substance, element or material as now or at any time hereafter in effect or amended (for purposes of this
Section herein collectively called the "Laws"), except as otherwise legally permitted for its drycleaning
business. 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 syringes,
blood products, "sharps", medical instruments and all other types of medical waste in a safe, clean, sanitary
manner and in accordance with all applicable laws and regulations.
(C) Tenant covenants, represents and warrants that it will 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, including
personal injury or property damages, penalties, response costs, injunctive or other relief; (b) costs or removal
and restoration, including fees of attorneys and experts, costs of reporting to any governmental agency the
existence of hazardous substances, hazardous waste, pollutants and/or contaminants and costs of preparing
or causing to be prepared any and all studies, tests, analyses or reports in connection with any environmental
matter; (c) all expenses:.or obligations, including attorneys' fees, incurred at, before and after any trial or
16
appeal therefrom whether or not taxable as costs, including attorneys' fees, witness fees, deposition costs and
other expenses; (d) all other costs, expenses and liabilities arising from Tenant's violation of the laws or any
other environmental regulation now in force or hereafter enacted; and (e) Tenant's'disposal of medical waste
as set forth in paragraph (A) above. The obligations of Tenant as contained in this Section shall survive the
termination of the Lease.
Tenant shall, at Tenant's sole cost, comply with all of the requirements of all governmental
authorities (including without limitation those requiring replacements, additions, repairs and alterations,
[structural or otherwise]), and with all directions, rules, regulations and recommendations of Owner's hazard
insurer, now in force, or which may hereafter be in force, pertaining to (i) the Leased Premises, (ii) all of
Tenant's Property in the Leased Premises and (iii) the use and occupancy of the Leased Premises.
ARTICLE XV - MERCHANTS ASSOCIATI (INTENTIONALLY OMITTED)
(A) If the Leased Premises are damaged or destroyed by fire or other casualty insurable under
standard fire and extended coverage insurance so as to become partially or totally untenantable, the same,
unless this Lease is terminated as provided in paragraph (B), shall be repaired and restored by Owner and
Tenant with due diligence, and during such restoration period, the Annual Minimum Rent (but not the
Annual Percentage Rent) and other charges payable hereunder shall equitably abate to the extent the Leased
Premises are materially affected thereby. Owner's obligation under this paragraph (A) to repair and restore
shall be limited to the repair and restoration of those parts of the Leased Premises that were originally
constructed and or installed by Owner at its expense including but not limited to Owner's Work set forth in
Exhibit B. All other repair and restoration shall be the responsibility and at the expense of the Tenant.
(B) If the Leased Premises are damaged or destroyed to the extent the cost of restoration thereof
would exceed 15% of the amount it would have cost to replace the Leased-'.Premises in its entirety at the time
such damage or destruction occurred, then Owner may elect to terminate this Lease by giving notice to
Tenant of its election to do so within 30 days after such occurrence. If Owner exercises its right to terminate
this Lease, then this Lease shall cease, effective as of the date of such damage or destruction, and all rent and
other charges payable by Tenant shall be adjusted as of that date.
Notwithstanding anything to the contrary set forth in Section 16.01, in the event all or any portion
of the Shopping Center shall be damaged or destroyed by fire or other cause (notwithstanding that the Leased
Premises may be unaffected thereby), to the extent the cost of restoration thereof would exceed 25% of the
amount it would have cost to replace the Shopping Center in its entirety at the time such damage or
destruction occurred, then Owner may terminate this Lease by giving to Tenant 30 days' prior notice of
Owner's election so to do, which notice shall be given, if at all, within 90 days following the date of such
occurrence. In the event of the termination of this Lease as aforesaid, this Lease shall cease 30 days after
such notice is given, and the rent and other charges hereunder shall be adjusted as of that date.
17
In the event of any condemnation or conveyance in lieu thereof of the Leased Premises or the
Shopping Center, or both, whether whole or partial, Owner may terminate this Lease, and in any event,
Tenant shall have no claim against Owner or the condemning authority for the value of the unexpired term,
and Tenant shall not be entitled to any part of the compensation or award, that is paid as compensation for
diminution in value to the leasehold or to the fee of the Leased Premises, and Owner shall receive the full
amount thereof, Tenant hereby waiving any right to any part thereof and assigning to Owner its interest
therein.
ARTICLE XVIII - TENANT'S DEFAULT; AND SECURITY DEPOSIT
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 terms hereof and shall
remain so for a period of ten (10) days after Owner gives Tenant notice of such default, or if Tenant fails to
perform any of the other terms, conditions, covenants and obligations of this Lease to be observed and
performed by Tenant for more than 21 days after Owner gives Tenant notice of such default (it being agreed
that a default, other than the failure to pay money, which is of such a character that rectification thereof
reasonably requires longer than said 21 day period and completes the same with due diligence); or if Tenant
shall vacate or abandon the Leased Premises (it being agreed that, subject to the provisions of Articles XVI
and XVII and to Section 23.02, Tenant's failure to operate its business in the Leased Premises for seven
consecutive days or more shall conclusively be deemed an abandonment) or suffer this Lease to be taken
under any writ of execution, attachment or other process of law, or if this Lease shall by operation of law
devolve upon or pass to any other party other than a party, if any; to whom Tenant is authorized to assign
this Lease by the provisions of Section 13.0 1, or if an "Act of Bankniptcy" (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 worth, less the fair rental value of
the Premises for the remainder of said term, also discounted at the rate of six percent (6%) 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). If Owner re-enters and takes possession of the Leased Premises and withiin
18
ten (10) days thereof does not.expressly terminate this Lease, then Owner has a duty to mitigate its damages
and to seek to re-let the Leased Premises.
(3) At its option, to require that upon (i) any termination 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 possession of the Leased'Premises to Owner and immediately vacate the same, and remove all
effects therefrom, except such as may not be removed under other provisions of this Lease. .
(4) At its option, to make such alterations and repairs as Owner shall determine may be
reasonably necessary to relet the Leased Premises, and to relet the same or any part thereof for such term or
terms (which may be for a term extending beyond the term of this Lease) and upon such terms and conditions
as Owner in its sole discretion may deem advisable. Upon each reletting, all rentals received by owner from
such reletting shall be applied as follows: first, to the payment of any indebtedness other than rent or other
charges due under this Lease from Tenant to Owner; second to the payment of any reasonable costs and
expenses of such reletting, 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.
(5) If Tenant shall default in the payment of the rent herein reserved or in the payment
of any other sums due hereunder by Tenant, Tenant hereby authorizes and empowers any
Prothonotary or attorney of any court of record to appear for Tenant in any and all actions which may
be brought for said rent and/or said other sums; and/or to sign for Tenant an agreement for entering
in any competent. court an amicable action or actions for the recovery of said rental and/or other sums;
and in said suits or in said amicable action or actions to confess judgment against Tenant for all or any
part of said rental and/or said other sums, including but not limited to the amounts due from Tenant
to Owner under subparagraphs (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
or renewal term of this Lease and/or after the expiration of any extended or renewal term of this
Lease. _
Tenant)
(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
19
warrant; thereupon, if Owner so desires, an appropriate writ of possession may issue forthwith,
without any prior writ or proceeding whatsoever, and provided that if for any reason after such action
shall have been commenced it shall be determined that possession of the Premises remain in or be
restored to Tenant, Owner shall have the right for the same default and upon any subsequent default.
or defaults, or upon the termination of this Lease or Tenant's right of possession as hereinbefore set
forth, to bring one or more further amicable action or actions as hereinbefore set forth to recover
possession of the Premises and co ss ' dgment for the recovery of possession .of the Premises as
hereinbefore provided.
(T ant)
(7) In any amicable action of ejectment and/or for rent and/or other sums brought hereon,
Owner shall first cause to be filed in such action an affidavit made by Owner or someone acting for
Owner, setting forth the facts necessary to authorize the entry of judgment, of which facts such
affidavit shall be prima facie evidence, and if a true copy of this Lease (and of the truth of the copy
such affidavit shall be sufficient evidence) shall be filed in such suit, action or actions, it shall not be
necessary to file the original as a war n a orney, any rule or Court, custom or practice to the
contrary notwithstanding.
(Ten nt)
(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.
Ten w ' any notice to quit required by any law now in force of hereafter enacted.
(Ten t)
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.
(A) Except as otherwise not permitted by the United States Ban1cruptcy Code, at any time prior
to or after the commencement of the term of this Lease there shall be filed by Tenant or Guarantor; in any
court pursuant to any statute either of the United States or of any State, a petition in bankruptcy (including,
without limitation, a petition for liquidation, reorganization or for 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
Guarantor a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, 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 togas an "Act of
20
Ban cy"), then, in addition to Owner's other rights and remedies under this Lease and applicable law,
this Lease shall, at Owner's option (and if permitted by law), be 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 and other charges payable by Tenant under this Lease shall constitute
rent for the purpose of applying the provisions of Section 502(b)(7) of the Federal Bankruptcy Code.
(B) In the event an act of bankruptcy shall occur and this Lease is not terminated pursuant to the
provisions of paragraph (A), the parties agree that:
(i) If 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 V respecting the Permitted Use of the Leased Premises and the manner of
operation thereof) binding on Tenant under this Lease, (b) represent and warrant in
writing to Owner that such party has a net worth and operating experience at least
comparable to that possessed by Tenant named herein and Guarantor as of the
execution of this Lease, (c) deposit with Owner a Security Deposit and advance rent
equal to that initially deposited by Tenant named herein.
(ii) Lease shall be deemed a lease of "Nonresidential Real Property" within a
. "Shopping Center" for the purpose of Section 365 of the Federal Bankruptcy Code.
(C) Any person or entity to which this Lease is assigned pursuant to. the. provisions of the
Bankruptcy Code, 11 U.S.C. Section 101, et =}. (the Mankn cy Code") shall be deemed without further
actor deed to have assumed all of the obligations arising under this Lease on and after. the date -of such
assignment.
If Tenant fails to perform any agreement or obligation on its part to be performed under this.: Lease,
Owner shall have the right (i) if no emergency exists, to perform the same after giving 15 days' notice to
Tenant; and (ii) in any emergency situation, to perform the same immediately without notice or delay. For
the purpose of rectifying Tenant's defaults as aforesaid, Owner shall have the right to enter the Leased
Premises. Tenant shall, 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, annoyance, or damage resulting to Tenant or anyone
holding under Tenant for any action taken by Owner pursuant to this Section.
(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 be 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.....
21
commingle it with other funds. If after the execution of this Lease Agreement and Owner's receipt of the
Security Deposit, Tenant would fail to commence under the terms of this Lease Agreement, Tenant shall
forfeit the Security Deposit which shall be retained by Owner as liquid dated damages, this Lease Agreement
shall terminate, and all of the Owner and Tenants obligations hereunder shall become null and void.
(B) If at any time during the term any Annual Minimum Rent, Annual Percentage Rent, or
additional rent payable by Tenant shall be overdue, or if Tenant fails to perform any of the other terms,
covenants or 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 Owner for loss or damage sustained
by Owner due to a breach by Tenant as aforesaid, without prejudice to Owner's other remedies. Should all
or any part of the Security deposit be appropriated and applied by Owner as provided above, then Tenant
shall, upon demand of 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 50 days after the
later of the following dates: (i) the date of expiration of the term or (ii) the date Tenant shall deliver to Owner
such inspection reports as Owner shall require setting forth that the Leased Premises were surrendered in
accordance with Section 11.02 of this Lease.
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 limitation 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 also shall have the right to enter the Leased Premises and to erect scaffolding and barricades
around the same (but not so as to preclude entry thereto) in order to=make such repairs, alterations,
improvements and additions to the building of which the Leased Premises form a part and the foundations
and walls of the Leased Premises as Owner may deem necessary or desirable, but Owner shall use reasonable
efforts consistent with accepted construction practice to minimize interference to Tenant's business caused
by reason thereof. The exercise by Owner of its rights of entry and other rights granted under this paragraph
shall not constitute an eviction of Tenant and the rent payable under this Lese shall not abate by reason
thereof.
Section 20.01 - Arbitration (INTENTIONALLY OMITTED)
THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING,
COUNTERCLAIM OR APPEAL BROUGHT BY EITHER. PARTY AGAINST THE OTHER ON ANY
22
r
MATTER ARISING UNDER THIS LEASE. Tenant agrees that any action brought in connection with this
Lease maybe maintained in any court of competent jurisdiction in the Commonwealth of Pennsylvania. In
case suit shall be brought because of the breach of any agreement or obligation contained in this Lease on
the part of Tenant or Owner to be kept or performed, and a breach shall be established, the prevailing party.
shall (to the extent permitted by law) be entitled to recover all expenses incurred therefor, including
reasonable attorneys' fees. All rights and remedies shall be cumulative except if and to the extent the law
deems any remedy to be inconsistent with.or to the exclusion of any other remedy, and may be exercised and
enforced concurrently.. Any right or remedy conferred upon a party under this Lease shall not be deemed
to be exclusive of any other right or remedy such party 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 XXI - OWNER'S LIABILITY
(A) Anything contained in this Lease to the contrary notwithstanding, Tenant agrees that Tenant
shall look solely to the fee simple interests or leasehold estate of the Owner in the Shopping Center, and/or
the proceeds thereof, for the collection of any judgment (or other judicial process) requiring the payment of
money by Owner in the event of any default or breach by Owner with respect to any of the terms and
provisions of this Lease to be observed or performed by Owner, subject, however, to the prior rights of the
holder of-.any mortgage covering the Shopping Center, and NO OTHER ASSETS OF OWNER SHAT 1, B .
(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,
abo*.e, upon or about the`'-Premises or improvements constituting a pact 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 not seek in any proceeding) any damages from Owner on account thereof; it being agreed
that Tenant's sole remedy for Owner's withholding or delaying of consent shall be injunctive relief (without
any right to damages).
(D) Notwithstanding anything to the contrary contained in this Lease, if Owner shall elect to
provide security service then (i) any security service that may be provided by Owner is intended solely for
the protection and benefit of the Common Facilities and not for the 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
23
to any third party by reason of Owner's act or failure to act in providing or maintaining security in the
Shopping Center.
Section 21 02 Owner's Obligations With Respect to Future Building Areas,
Notwithstanding' anything set out in this Lease to the contrary, it is understood and agreed that (i)
Tenant will not cancel this Lease nor be entitled to claim any actual or constructive eviction because of a
default of Owner either by act or omission under this Lease when such act or omission relates to any Future
Building Area shown on Exhibit A, and Tenant will not abate rentals or otherwise credit or offset damages
against rental under this Lease because of any act or omission of Owner under this Lease which relates to
any Future Building Area shown on Exhibit A, but shall not be construed as a waiver of any rights Tenant
may have in personam against or as a waiver of any remedies by way of injunctive relief which Tenant may
have against Owner (other than one who becomes such after the foreclosure of any first mortgage covering
any part of the real property which is contained within the Shopping Center, or after the execution of a deed
in lieu thereof); and (ii) the restrictions set out in this Lease, if any, to the extent the same relate to any Future
Building Area shown on Exhibit A, and all obligations of Owner with respect to such 'restrictions shall
absolutely and automatically terminate for all purposes from and after the date the holder of any first
mortgage affecting the real property which is contained within the Shopping Center, forecloses its mortgage
or obtains a deed in lieu thereof. For purposes of this Section, an "Outlot" shall be considered the same as
a Future Building Area.
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 option of Owner, shall be deemed
to be occupying the Leased Premises as a tenant from month-to-month, at a rate equal to 125% of the Annual
Minimum Rent for the last Lease Year of the term, subject to all the other conditions, provisions and
obligations of this Lease insofar as the same are applicable to a month-to-month tenancy.
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 MIT - WAIVER- NOTICE; DEFINITIONS; 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.
24
In the event either party hereto shall be delayed or hindered in or prevented from the performance
of any act required under this Lease by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive governmental law or regulations, riots, insurrection, war or other
reason of a like nature not the fault of the party delayed in performing work or doing acts required under
the terms of this Lease, then performance of any such act shall be extended for a period equivalent to the
period of such delay. The provisions of this Section shall not (a) operate to excuse Tenant from prompt
payment of Annual 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 funds.
(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, AirBome, 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 fiunished by Tenant
pursuant to. Article X, to the address of Owner designated in Section A-1 of the Basic Lease Provisions.
(B) All Notices shall be effective upon being deposited in the United States mail or with a
nationally recognized overnight courier service, in the manner prescribed in paragraph (A) of this Section.
However, the time period in which a response to any such Notice must'be given shall commence to run from
the date of receipt by the addressee thereof as shown on the return receipt of the Notice. Rejection or other
refusal to accept or the inability to deliver because of changed address of which no Notice was given, shall
be deemed to be receipt of the Notice as of the date of such rejection, refusal or inability to deliver.
(A) The term "calendar year" shall mean a period of 12 consecutive full calendar months,
commencing January 1 and ending December 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.
25
(C) The term "Cross Leasable Area" shall mean the aggregate floor area within the exterior faces
of the exterior walls (except party walls as to which the center thereof, instead of the exterior faces thereof,
shall be used). Changes in Gross Leasable Area occurring during any calendar month shall be effective on
the first day of the next succeeding calendar month and, unless otherwise herein specified to the contrary,
the total number of square feet of Gross Leasable Area in effect for any calendar year shall be the average
of the number of square feet of Gross Leasable Area on the first day of each calendar month in such calendar
year.
(D) The term "including" as used in this Lease shall mean "including without limitation".
(E) The term " Tnterest 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 "Bank") initially determined as of the date any rent,
additional rent or other payment under this Lease is due and for which interest at the Interest Rate is charged
and thereafter adjusted daily; PROVIDED, HOWEVER, if the Bank should cease to exist as a viable
commercial bank, then the "Effective Rate" of any commercial bank selected by Owner and having capital
and surplus 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 "Modgae' 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 Percentage Share" shall mean the Tenant's proportionate share based
on the calculated percentage of Tenant's Gross Leasable Area as herein defined in relation to the total gross
leasable area of the shopping center.
(I) The word "T.enant" shall mean each and every person or party mentioned as Tenant herein,
and if there shall be more than one Tenant, any Notice required or permitted by the terms of this Lease may
be given by or to any one thereof and shall have the same force and effect as if given by or to all thereof.
(J) The word %=" shall mean the period from the date of the commencement of this Lease
to the expiration or sooner termination thereof, including any extension thereof, all as herein provided.
(A) Recording of Leal 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.
26
(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 jurisdiction The laws of the Commonwealth of Pennsylvania shall
govern the validity, performance and enforcement of this Lease.
(D) No Accord And Satisfaction. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent and other charges, nor shall any endorsement or statement on any check or on any
letter accompanying any check be deemed an accord and satisfaction.
(E) Alterations And Amendments, Except as herein otherwise expressly provided, no
subsequent alteration, amendment, change or addition to this Lease, nor any surrender of the term, shall be
binding upon Owner or Tenant unless reduced to writing and signed by both of them,
(F) No Partnership. Owner does not in any way 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.
(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.
(H) C aptions; Article Numb CM The captions, section numbers, article numbers and index
appearing in this Lease in no way define, limit, construe or describe the scope or intent of such sections or
articles of this Lease. The language in all parts of this Lease shall in all cases be construed as a whole
according to its fair meaning, and not strictly for not against either Owner or Tenant, and should a court be
called upon. to interpret any provision hereof, no weight shall be given to, nor shall any construction or
interpretation be influenced by, any presumption of preparation of a lease by Owner or by Tenant.
(I) guaranty, At the time of executing this Lease, Tenant shall provided to Owner a signed
Guaranty of Lease including the signature of the spouse, if any, in form and substance as set forth in Exhibit
C hereto. Each Guarantor shall provide Owner with an annual financial statement upon request.
(J) SeverabilTty. In the event that one..or more provisions ofthis Lease shall be found to be
unenforceable at law or in equity, the remainder of the Lease shall not be affected and shall remain in full
force and effect.
(K) Successors and Assigns., This Lease shall be binding upon and shall inure to the benefit of
the parties hereto and their respective legal representative, heirs, successors and assigns.
(L) Tenant'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 into this Lease, and that all corporate action requisites
to authorize Tenant to enter into this lease has been duly taken.
21
(MI) 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
(l) East party shall perform hereunder, and exercise its rights and remedies, in good faith and
consistent with the standard of commercial reasonableness.
THIS LEASE AND THE EXHIBITS AND RIDER, IF ANY, ATTACHED HERETO, IS THE
COMPLETE AGREEMENT BETWEEN OWNER AND TENANT CONCERNING THE LEASED
PREMISES AND THE SHOPPING- -CENTER. THERE ARE NO ORAL AGREEMENTS,
UNDERSTANDINGS, PROMISES OR REPRESENTATIONS BETWEEN OWNER AND TENANT
AFFECTING THIS LEASE. ALL PRIOR NEGOTIATIONS AND UNDERSTANDINGS, IF ANY,
BETWEEN THE PARTIES HERETO WITH RESPECT TO THE LEASED PREMISES AND THE
SHOPPING CENTER SHALL BE OF NO FORCE OR EFFECT AND SHALL NOT BE USED TO
INTERPRET THIS LEASE.
written.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date first-above
WITNESS:
ATTEST:
- 11--: ` " -k--___
'Lj , Secretary
OWNER:
Rothman, Schubert & Reed, a Pennsylvania
General Partnership
BY
_X?? - (SEAL)
Samuel L. Reed, Attortaey-in-Fa pursuant to Power of
Attorney dated August 21, 1996„ and recorded in Misc.
Book 528, Page 480.
TENANT:
Bri0ohn Enterprises, Inc. t/d/b/a Class Act Drycleaners
By: _ -(SEAL)
John F. o stock III, President
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CANOPY
I FUTURE
i EXPANSION
RS&R SHOPPING CENTER -OVERALL
All that certain tract of land situate in East Pennsboro Township, Cumberland County,
Pennsylvania, more particularly bounded and descn'bed as follows:
BEGINNING at a point along the northern right of way line of Pennsylvania Route 944.
also known as Wertzvilla Road and on the line of adjoiner between-lots nos. 1 and 3 on
the hereinafter mentioned Plan of Lot;
thence. along said line of 4oiner by a curve to the left with a radius of 10.00' and an arc
length of 15.71' to a point;
thence, continuing along said line of adjoiner N 17°32'33"W, a distance of 185.58' to a
point;
thence; continuing along said line of adjoiner S 72°27'27" W, a distance of 241.55' to a
point on the centerline of an eodsting 20' sanitary sewer casement.
thence, continuing along said centertine the following courses and distances:
N 27°20'00" W. a distance of 138.95' to a point-.
N 17° 15'30" W, a distance of 263.28' to a point;
N 4'10'00" E. a distance of 130.24' to it point;
N 4'20'30~ 1r, a distance of 123.12' to a point;
N-13630'Vl-a distant c of 259:57' tax point.
N 00 51'E. a distance of 348.14' to a point on the line of adjoiner belwoen Lot No. 3 and
lands now or formcriy (n/0 of lamb R Renninger,
thence, along said line of adjainer N 80'5942" 11. a distance of 102.70' to a point on the
line of adjoiner between Lot No. 3 and lands n/f of Robert Brett
.thence, along said Une.of adjoiner and along lands n/f of Margaret and Jacob Ulrick S
22°24'47' E. a distance of 200.3 I' to srt iron pin;
thence. N 81'05'07" E. a distance of 298.94' to a point;
thenco. S 22°51'00" E. a distance of 217.05' to s point;
thence. along raid lands n/f of Conservative BAWIst Church S 81'24'0()" W. a distance of
125.44' to an iron pin;
thence along said line of adjoiner S 22'51'08" E. a distance of 349.95' to an iron pin;
thence, along said line of adjoiner N 81024- E a distance of 125.44' to an iron pin on the
western end of Linden Street;
thence, along said western end of Linden Street S 16015'43" E. a distance of 4804' to an
iron pin an lands n/f of Men B. Hcisc)r
thence, along said lands S 22'53'35" E a distance of 152.38' to an iron pin at lands n/f of
Donald E. Shutt;
thence. along said lands n/f of Shutt and lands n/f of Robert Bretz S 73°44'35" W a
distanco of 179.42' to an iron pin;
thence, along said IaM.a.of Bretz S 17°35'35" E it distance of 182.03' to a point on the
northern line of Lot No. 2;
EXHIBIT "A-1
thence, 3 72027'27" Wa distance of 199.80' to a point.
thence, S I x3233" E a distancc of 208.00' to a point;
thence, by a curve to the left having it radius of 10' for an arc distance of 15.71' to a point
on the northern line of Pennsylvania Route W. known as Wentzville Road;
thence. S 72°27'27" W s distance of 79.04' to a point the place of BEGINNING.
Containing: 579.784 sq. ift. (13.31 acres)
BEING Lot No.' 3
WERTZVtLLE ROAD R/W CONVEYANCE
All that certain tract of land situate in East Ponnaboro Township, Cumberland County,
Pennsylvania. more particularly bounded and described as follows:
BEGINNING at a point along the existing northern right ofway, fine ofpennsylvania
Route 944. also known as Wentzville Road, said point being located at the southeastern
corner of lands now or formerly of Erie Shore Enterprises, Inc. thence along said lands by
a curve to the lc13 having a radius of 10.00 and an arc length of 15.71' to a point. thence,
by same N 17°3233" W a distance of 5.14' to a point on the required northern right-or-
way line of Wentzville Road. thence, by said right-of-way fine N 72026'17- E a distance of
59.04' to a point at lands now or formerly of Uni-Mar% Inc.; thence, along lands of Uni-
Marts, Inc. S 17°3233" E a distance of 5.16' to a point; thence, by same by a curve to the
ICR having a radius of 10.00, and an are length of 15.71' tout point on the northern right-
of-way line of Wertzvifie Road; thence, by said tight-of--way line S 72°27'27" W a
distance of 79.04' to a point, the place of BEGINNING.
Containing: 938 sq. ft. (0.02 acres) .
CONVEYANCE TO RS &R
All that certain tract of land situate in East Pennsboro Township. Cumberland County,
Pennsylvania, more particularly bounded and described as follows:
BEGINNING at a point on the eastern right-of-way of Salt Road Realignment, said point
being on the centerline of an existing 20' sanitary sewer easement; thence, along said
sewer centerline N 17' 15'30" W a distance of 70.96' to a point; thence, by same N
04'10'00" E a distance of 130.24' to a point; thence, along lands now or formerly of west
Shore First Assembly of God S 67'54'41" W a distance of 116.45' to it point on the
eastern right-of-way line of Salt Road Realignment; thence, along saidright-of-way tine S
22°05' 19" E a distance of 113.65' to a point; thence. by acme N 67°54'41" E a distance
of 5.00' to a point; thence; by sane S 22°05' 19" E a distance of 113.65' to a point;
thence, by samc N 67°54'41" £ a distance of 47.86' to a point, the place of BEGINNING.
Containing: 13.618 sq; fl. (0.31 acres)
RULES AND REGULATIONS
Tenant shall at all times during the term of the Lease:
1. 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 lawful 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.
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 other 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 in 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 regular 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 or 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 suffer or permit delivery of merchandise to, or collection of refuse from, the Leased
Premises after 11:00 a.m. 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. Not use show windows in the Leased Premises for any purpose other than display of merchandise for
sale in a neat and attractive manner.
17. Not conduct, permit or suffer any public or private auction sale to be conducted on or from the Leased
Premises.
18. Not solicit business in the common areas of the Shopping center or distribute hand bills or other
advertising materials in the common areas, and if this provision is violated Tenant shall pay Owner the cosi of collecting
same from the common areas for trash disposal.
19. Automobiles belonging to Tenant, its employees and invitees, shall be parked only in the areas that
may be designated by Owner, subject to the provisions of this Lease.
20. Doors in the Leased 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 about 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, Owners'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 that absolute supervision of the use of the Leased Premises is necessary in order to officially maintain and operate
an entire Shopping Center, and the parties therefore agree that the Owner shall have the exclusive and sole right of
determining as to what constitutes a nuisances and that its determination 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 conforin to all applicable laws, ordinances an4 regulations.
IN WITNESS WHEREOF, the parties set forth theirs hands this LIJLf? day of__.. .. , 2001.
WITNESS:
OWNER:
Rothman, Schubert & Reed, a Pennsylvania
General Partnership
ATTEST:
Secretary
By: (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:
Brittjohn Ente Irises, Inc., t/d/b/a Class Act Drycleaners
By: (SEAL)
J F. Vo oc 1111, President
i
Inconsideration of the making of the above Lease dated 4W,-e-)Af- , 2001,
by the Tenant with the Owner at the request of the undersigned, and in reliance of the Guaranty, the
undersigned hereby unconditionally and irrevocably guarantees the payment of the rent to be paid by the
Tenant and the performance by the Tenant of all the terms, conditions, covenants and agreements of the
Lease and its Exhibits, and the undersigned promises to pay all of the Owner's expenses, including
reasonable attorney's fees, incurred by the Owner in enforcing this Guaranty. The Owner's consent to any
assignment or assignments, and successive assignments by the Tenant and Tenant's assigns, of this Lease,
made either with or without notice to the undersigned, or a changed or different use of the Leased Premises;
or Owner's forbearance delay, extensions of time or any other reason whether similar to or different from
the foregoing, shall in no way or manner release the undersigned from liability as Guarantor. Where the
undersigned include more than one party, the obligation of each such party hereunder will be joint and
several. It will not benecessary for Owner to proceed first against Tenant in invoking any of Owner's lease
remedies before proceeding to enforce this Guaranty of Lease.
WITNESS the hand and seal of the undersigned at the date of the above Lease.
WITNESS:
E r 1.
A
1-r - -"_i
EXHIBIT "B"
Database: CEDARSHOPCTR Aged Delinquencies Page: 1
Cedar Shopping Centers Date: 7/12/2011
ENTITY: 1285 PENNSBORO COMMONS Time: 11:46 AM
Date: 7/5/2011
Invoice Date Category Source Amount Current 30 60 90 120
285-001184 CLASS ACT DRYCLEANERS Master Occupant Id: 000011241 Suite: 004 Current
Monthly Rent CAM Recovery RETAX Rec emery Day Due: 1
Contact: JOHN VOYSTOCK Delq Day: 5
Tel. No. (717) 909-8691
Fax No. Last Payment
E mail : 402011 2 228.62
U/Me 'IU 1NS iNSUKANGe CH 8.00 0.00 0.00 0.00 0.00 8.00
1211/2010 RNT Base Rent CH 1,797.76 0.00 0.00 0.00 0.00 1,797.76
12/1/2010 TXS Real estate tax estimate CH 140.00 0.00 0.00 0.00 0.00 140.00
12/8/2010 NSF NSF FEES CH 100.00 0.00 0.00 0.00 0.00 100.00
1/21/2011 NSF NSF FEES CH 100.00 0.00 0.00 0.00 0.00 100.00
211/2011 ESC Cam estimates CH 175.00 0.00 0.00 0.00 0.00 175.00
2/112011 INS INSURANCE CH 8.00 0.00 0.00 0.00 0.00 8.00
2/1/2011 RNT Base Rent CH 1,905.63 0.00 0.00 0.00 0.00 1,905.63
2/112011 TXS Real estate tax estimate CH 140.00 0.00 0.00 0.00 0.00 140.00
3/1/2011 ESC Cam estimates CH 175.00 0.00 0.00 0.00 0.00 175.00
3/1/2011 INS INSURANCE CH 8.00 0.00 0.00 0.00 0.00 8.00
3/1/2011 RNT Base Rent CH 1,905.63 0.00 0.00 0.00 0.00 1,905.63
3/1/2011 TXS Real estate tax estimate CH 140.00 0.00 0.00 0.00 0.00 140.00
3/15/2011 CMM Annual Cam Expenses CH 814.00 0.00 0.00 0.00 814.00 0.00
3/15/2011 INY INSURANCE YEARLY CH 83.79 0.00 0.00 0.00 83.79 0.00
4/1/2011 ESC Cam estimates CH 230.00 0.00 0.00 0.00 230.00 0.00
4/1/2011 INS INSURANCE CH 8.00 0.00 0.00 0.00 8.00 0.00
4/1/2011 RNT Base Rent CH 1,905.63 0.00 0.00 0.00 1,905.63 0.00
4/1/2011 TXS Real estate tax estimate CH 140.00 0.00 0.00 0.00 140.00 0.00
4/8/2011 NSF NSF FEES CH 100.00 0.00 0.00 100.00 0.00 0.00
5/1/2011 ESC Cam estimates CH 230.00 0.00 0.00 230.00 0.00 0.00
5/1/2011 INS INSURANCE CH 8.00 0.00 0.00 8.00 0.00 0.00
5/1/2011 RNT Base Rent CH 1,905.63 0.00 0.00 1,905.63 0.00 0.00
5/1/2011 TXS Real estate tax estimate CH 140.00 0.00 0.00 140.00 0.00 0.00
6/1/2011 ESC Cam estimates CH 230.00 0.00 230.00 0.00 0.00 0.00
6/1/2011 INS INSURANCE CH 8.00 0.00 8.00 0.00 0.00 0.00
6/1/2011 RNT Base Rent CH 1,905.63 0.00 1,905.63 0.00 0.00 0.00
6/1/2011 TXS Real estate tax estimate CH 140.00 0.00 140.00 0.00 0.00 0.00
6/15/2011 LEG LEGAL FEES CH 21.33 21.33 0.00 0.00 0.00 0.00
7/1/2011 ESC Cam estimates CH 230.00 230.00 0.00 0.00 0.00 0.00
7/1/2011 INS INSURANCE CH 8.00 8.00 0.00 0.00 0.00 0.00
7/1/2011 RNT Base Rent CH 1,905.63 1,905.63 0.00 0.00 0.00 0.00
7/1/2011 TXS Real estate tax estimate CH 140.00 140.00 0.00 0.00 0.00 0.00
CMM Annual Cam Expenses 814.00 0.00 0.00 0.00 814.00 0.00
ESC Cam estimates 1,270.00 230.00 230.00 230.00 230.00 350.00
INS INSURANCE 56,00 8.00 8.00 8.00 8.00 24.00
INY INSURANCE YEARLY 83.79 0.00 0.00 0.00 83.79 0.00
LEG LEGAL FEES 21.33 21.33 0.00 0.00 0.00 0.00
NSF NSF FEES 300.00 0.00 0.00 100.00 0.00 200.00
RNT Base Rent 13,231.54 1,905.63 1,905.63 1,905.63 1,905.63 5,609.02
TXS Real estate tax estimate 980.00 140.00 140.00 140.00 140.00 420.00
ULASJ AUT DRYGLEANERS Total: 16,756.66 2,304.96 2,283.63 2,383.63 3,181.42 6,603.02
CMM Annual Cam Expenses 814.00 0.00 0.00 0.00 814.00 0.00
ESC Cam estimates 1,270.00 230.00 230.00 230.00 230.00 350.00
INS INSURANCE 56.00 8.00 8.00 8.00 8.00 24.00
INY INSURANCE YEARLY 83.79 0.00 0.00 0.00 83.79 0.00
LEG LEGAL FEES 21.33 21.33 0.00 0.00 0.00 0
00
NSF NSF FEES 300.00 0.00 0.00 100.00 0.00 .
200.00
Database: CEDARSHOPCTR Aged Delinquencies Page: 2
Cedar Shopping Centers Date: 7/12/2011
ENTITY: 1285 PENNSBORO COMMONS Time: 11:46 AM
Date: 7/5/2011
Invoice Date Category Source Amount Current 30 60 90 120
RNT Base Rent 13,231.54 1,905.63 1,905.63 1,905.63 1,905.63 5,609.02
TXS Real estate tax estimate 980.00 140.00 140.00 140.00 140.00 420.00
ENTITY 1285 Total: 16,756.66 2,304.96 2,283.63 2,383.63 3,181.42 6,603.02
CMM Annual Cam Expenses 814.00 0.00 0.00 0.00 814.00 0.00
ESC Cam estimates 1,270.00 230.00 230.00 230.00 230.00 350.00
INS INSURANCE 56,00 8.00 8.00 8.00 8.00 24.00
INY INSURANCE YEARLY 83.79 0.00 0.00 0.00 83.79 0.00
LEG LEGAL FEES 21.33 21.33 0.00 0.00 0.00 0.00
NSF NSF FEES 300.00 0.00 0.00 100.00 0.00 200.00
RNT Base Rent 13,231.54 1,905.63 1,905.63 1,905.63 1,905.63 5,609.02
TXS Real estate tax estimate 980.00 140.00 140.00 140.00 140.00 420.00
Grand Total: 16,756.66 2,304.96 2,283.63 2,383.63 3,181.42 6,603.02
EXHIBIT "C"
SI RLIN CALLOCLY & LESSER
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
JON C. SIRLIN
TIMOTHY A. GALLOGLY
PETER A. LESSER
JOHN D. BENSON
SUSAN J. KUPERSMITH *+
DANA S. PLON *
DOROTHY ANNE HAMILL
LISA M. RUTENSERG •*?
JERRY 1. DREW**
KIERSTIN M. LANGE
ADAM NACHMANI *
-COUNSEL
-PA • 141 EAR
.-PA i NY !AR
•--PA.N1 • MD
PERSONAL & CONFIDENTIAL
Brittjohn Enterprises, Inc.
d/b/a Class Act Drycleaners
P.O. Box 60126
Harrisburg, PA 17106-0126
PERSONAL & CONFIDENTIAL
John F. Voystock, III
50 E. Shady Lane
Enola, PA 17025-2325
PERSONAL & CONFIDENTIAL
Brittjohn Enterprises, Inc.
d/b/a Class Act Drycleaners
324 East Penn Drive
Enola, PA 17025-2158
Re: Cedar-Pennsboro LLC By Its Agent: Cedar Shopping Centers, Inc. - Brittjohn
Enterprises, Inc. d/b/a Class Act Drycleaners and John F. Voystock, III
DEFAULT NOTICE
Our File No. 17900
Dear Sir or Madam:
Please be advised of our representation of the Landlord at Pennsboro Commons. I have
been advised by my client that Brittjohn Enterprises, Inc. d/b/a Class Act Drycleaners
("Tenant") and John F. Voystock, as Guarantor, are in default of the Lease dated December 31,
2001 for failing to pay rent and proper charges through the date hereof in the amount of
$12,168.07.
This letter will serve as formal notice of default, to Tenant and Guarantor, pursuant to
Section 18.01 of the Lease. Unless the arrearage and legal fees in the current amount of $750.00
is paid in full within ten (10) days from the date of this letter, I have been instructed to
commence appropriate legal action you without further notice or delay which may include
Judgment by Confession seeking money damages in the principal amount of the debt plus
interest, costs, late fees, accelerated rent through the remainder of the Lease term and/or
possession of the premises and additional attorney's fees. Execution will commence pursuant to
the law.
PENNSYLVANIA OFFICE
123 SOUTH BROAD STREET
SUITE 2100
PHILADELPHIA, PA 19109
(215) 864-9700
FAX (215) 864-9669
NEW JESEY OFFICE
102 BROWNING LANE
BUILDING C
CHERRY HILL, N] 08003
(856) 616-1900
FAX (856) 216-7459
May 4, 2011
SIRLIN GALLOGLY & LESSER, P.C.
May 4, 2011
Page Two
Please avoid the expense and inconvenience of litigation and execution by making
immediate payment of $12,918.07 and by contacting me to discuss this matter.
Sincerely,
Peter A. Lesser
PAL/am
Via Certified and Regular Mail
cc: Brenda Walker
SIRLIN GALLOGLY & LESSER, P.C.
123 South Broad Street, Suite 2100
Philadelphia, PA 19192
(215) 864-9700
By: Peter A. Lesser, Esquire
Identification No. 59433
CEDAR-PENNSBORO LP
By Its Agent: Cedar Shopping Centers
Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
V.
BRITT JOHN ENTERPRISES INC.
d/b/a CLASS ACT DRYCLEANERS
1430 Garalyn Road
Harrisburg, PA 17110
Attorneys for Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.
Notice of Defendant's Rights
To: BRITT JOHN ENTERPRISES INC.
d/b/a CLASS ACT DRYCLEANERS
1430 Garalyn Road
Harrisburg, PA 17110
A judgment in the amount of $29,580.61 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 or
other valid objections to the judgment.
You have a right to a prompt court hearing if you claim that you did not
voluntarily, intelligently and knowingly give up your rights to notice and hearing prior to the entry
of judgment. If you wish to exercise this right, you must immediately fill out and sign the petition
to strike judgment which is attached to this Notice. It should be then delivered to the Sheriff of
Cumberland County at One Courthouse Square, Carlisle, PA 17013
2. If you have been incorrectly identified as the defendant in this action, you
should promptly do the following in order to strike the judgment. In addition, you may be entitled
to recover from plaintiff reasonable attorneys' fees and costs if it is determined that you have been
incorrectly identified.
YOU MUST FILE A PETITION TO STRIKE THE JUDGMENT AND
PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH
THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
IT IS IMPORTANT THAT YOU ACT PROMPTLY.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
Lawyer Referral Service
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
1-800-990-9108
717 249 3166
Peter A. Lesser, Esquire
Sirlin Gallogly & Lesser, P.C.
123 South Broad Street, Suite 2100
Philadelphia, PA 19109
(215) 864-9700
2
SIRLIN GALLOGLY & LESSER, P.C.
123 South Broad Street, Suite 2100
Philadelphia, PA 19192
(215) 864-9700
By: Peter A. Lesser, Esquire
Identification No. 59433
C? 110NOTAR
? ,1 25 PM 3: 11
? ??NSYLVANIA
Attorneys for Plaintiff
CEDAR-PENNSBORO LP
By Its Agent: Cedar Shopping Centers
Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
V.
BRITT JOHN ENTERPRISES INC.
d/b/a CLASS ACT DRYCLEANERS
1430 Garalyn Road
Harrisburg, PA 17110
NO. /-b 7V6 C v, I -re Km
Notice under Rule 2958.1 of Judgment
and Execution Thereon
NOTICE OF DEFENDANT'S RIGHTS
TO: BRITT JOHN ENTERPRISES INC.
d/b/a CLASS ACT DRYCLEANERS
1430 Garalyn Road
Harrisburg, PA 17110
A judgment by confession in the amount of $29,580.61 has been entered against you and
in favor of the plaintiff without any prior notice or hearing based on a confession of judgment
contained in a written agreement or other paper allegedly signed by you. The Sheriff may take
your money or other property to pay the judgment at any time after thirty (30) days after the date
on which this notice is served on you.
PURSUANT TO RULE 41 Pa.C.S.A. §2737.1, IF YOU WERE INCORRECTLY
IDENTIFIED AS A DEFENDANT IN THE COMPLAINT IN CONFESSION OF
JUDGMENT, YOU MAY BE ENTITLED TO COSTS AND REASONABLE ATTORNEYS'
FEES AS DETERMINED BY THE COURT.
You may have legal rights to defeat the judgment or to prevent or delay the sheriff s sale.
1. Relief from a judgment by confession must be sought by petition.
II. All grounds for relief whether to strike off the judgment or to open it must be
asserted in a single petition.
III. The petition may be filed in the county in which the judgment was originally
entered, in any county to which the judgment has been transferred, or in any other county in which
the Sheriff has received a writ of execution directed to the sheriff to enforce the judgment.
IV. The petition must be filed within thirty (30) days after such service, unless you can
demonstrate that there were compelling reasons for the delay. A petition not timely filed must be
denied.
V. If the petition states prima facie grounds for relief, the court must issue a rule to
show cause and may grant a stay of proceedings.
VI. After being served with a copy of the petition, the plaintiff must file an answer on
or before the return day of the rule. The return day of the rule must be fixed by the court by local
rule or special order.
VII. A party waives all defenses and objections that are not included in the petition or
answer.
VIII. The petition and the rule to show cause and the answer must be served as provided
in Rule 440 of the Pennsylvania Rules of Civil Procedure.
IX. The court must dispose of the rule to show cause and the answer, and on any
testimony, depositions, admissions, and other evidence.
X. The court for cause shown may stay proceedings on the petition insofar as it seeks
to open the judgment pending disposition of the application to strike off the judgment.
XI. If evidence is produced that in a jury trial would require the issues to be submitted
to the jury, the court must open the judgment.
XII. The lien of the judgment or any levy or attachment must be preserved while the
proceedings to strike off or open the judgment are pending.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
2
J
IF YOU CANNOT HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE
YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES
TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Lawyer Referral Service
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
1-800-990-9108
717 249 3166
PETER A. LESSER, ESQUIRE
SIRLIN GALLOGLY & LESSER, P.C.
123 South Broad Street, Suite 2100
Philadelphia, PA 19109
(215) 864-9700
3
SIRLIN GALLOGLY & LESSER, P.C.
123 South Broad Street, Suite 2100
Philadelphia, PA 19192
(215) 864-9700
By: Peter A. Lesser, Esquire
Kierstin M. Lange, Esquire
Identification No. 59433/201267
CEDAR-PENNSBORO LP
By Its Agent: Cedar Shopping Centers
Partnership, L. P.
V.
BRITT JOHN ENTERPRISES INC.
d/b/a CLASS ACT DRYCLEANERS
D 4t _
2312 FEE 24 Fib 1 ? ?
vU g? NSYLVAN A T? ,
Attorneys for Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 11-6746
ORDER TO SATISFY
TO THE PROTHONOTARY:
Kindly mark the Judgment entered against Defendant, Britt John Enterprises, Inc.
d/b/a Class Act Drycleaners, in the above-captioned matter Satisfied upon payment of your costs
only.
SIRLIN, GALLOGLY & LESSER, P.C.
r
PETER A. LESSER, ES U
KIERSTIN M. LANGE, , Q
Attorneys for Plaintiff
February 22, 2012