HomeMy WebLinkAbout02-0765 HAMPDEN CENTER, INC., : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : NO.
:
JERRY SHIN, :
: CIVIL ACTION
Defendant, :
:
NOTICE
YOU HAVE BEEN SUED IN COURT. If yOU wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are
served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or
objections to the claims set forth against you. You are warned
that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the Court without
Complaint or for any other claim or relief requested by the
Plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Lawyer Referral Service
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
1-800-990-9108
HAMPDEN CENTER, INC., :
Plaintiff :
JERRY SHIH, :
: CIVIL ACTION
Defendant, :
COMPLAINT
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVAi~IA
AND NOW, comes Plaintiff, Hampden Center, Inc., by and
through its attorneys, Law Offices Stephen C. Nudel, PC, and
respectfully files the following Complaint:
1. Plaintiff, Hampden Center, Inc., is a Pennsylvania
corporation with a business address of 444 Park Avenue South,
Suite 302, New York, New York 10016 ("Hampden Center").
2. Plaintiff is the owner of real property known as
Hampden Centre Shopping Center, Mechanicsburg, Hampden Township,
Cumberland County, Pennsylvania ("Shopping Center").
3. Defendant, Jerry Shih, is an adult individual having an
address of 766 Bethlehem Pike, Montgomeryville, Pennsylvania
18936.
4. On or about September 1, 1998, Plaintiff, as Landlord,
and Q.J.J., Inc., as Tenant, executed an Agreement of Lease
("Lease") for 2,000 square feet of commercial space known as
Space D-9 Hampden Centre Shopping Center, 4910 Carlisle Pike,
Mechanicsburg, Cumberland County, Pennsylvania 17050
("Premises"). A true and correct copy of the Lease is attached
hereto and made a part hereof as Exhibit "A".
5. Defendant as Guarantor executed a Lease Guaranty dated
September 2, 1998, which is attached to the Lease as Exhibit "G"
("Guaranty").
6. The Guaranty is an unconditional guaranty for the full
and prompt payment of rent and all other sums required to be paid
by Tenant under the Lease.
7. Under the terms of the Guaranty, the liability of the
Guarantor is direct and i~ftmediate and not conditional or
contingent upon the pursuit of any remedies against Tenant or any
other party or security.
8. Under the terms of the Guaranty, the Guarantor
guarantees the faithful performance of all terms, conditions,
covenants, obligations and agreements contained in the Lease
which are required to be performed by Tenant.
9. The Guaranty further states that the Guarantor promises
to pay all of Landlord's costs and expenses (including reasonable
attorneys fees) incurred in endeavoring to collect amounts due
from the Guarantor or incurred in enforcing the Guaranty as well
as all damages which the Landlord may suffer as a consequence of
any default or breach under the Lease or the Guaranty.
10. The Lease provides for payment of rent ("Rent") and
Tenant's prorata share of common area costs, insurance costs, tax
costs and utility costs (collectively "Additional Rent") in the
amount of $2,412.31 per month by Tenant and/or Guarantor.
11. Rent and Additional Rent are to be paid in advance of
the first day of each month.
12. Pursuant to the terms of the Lease, Tenant and
Guarantor are responsible for payment of annual promotion fees of
$600.00 per year.
13. Tenant and Guarantor are in default under the terms of
the Lease.
14. Tenant and Guarantor are in default under the terms and
conditions of the Lease in that they have failed to pay Rent and
Additional Rent for the months of November and December 2001,
when due and owing in the amount of $6,567.10.
15. The Lease provides, inter alia, that all amounts unpaid
by Tenant and/or Guarantor shall bear an interest rate of 18% per
annum, but not in excess of the maximum legal rate.
16. Defendant currently owes interest in the amount of
$1,563.29.
17. The Lease provides that any Rent not paid within
fifteen (15) days of its due date shall be subject to a late
charge in the amount equal to or the greater of $50.00 or sum
equal to 5% of the unpaid amount.
18. Tenant and Guarantor owe late charges in the amount of
$328.35.
19. Tenant and Guarantor owe cost of suit in the amount of
$89.50.
20. Tenant and Guarantor owe reasonable attorneys fees
occurred to date in the amount of $1,700.00
21. Based upon the foregoing, Defendant is liable to
Plaintiff as follows:
Amount past due
Costs
Attorneys Fees
$10,248.24
$ 195.50
$ 1,000.00
TOTAL: $11,443.74
WHEREFORE, Plaintiff demands Judgment against Defendant and
in favor of Plaintiff in the amount of $11,443.74 plus interest,
costs of suit and attorneys fees.
Respectfully submitted,
LAW OFFICES STEPHEN C. NUDEL, PC
Date
Stephen C] Nudel~ Esquire
A~torney ID #417~3
Mark W. Allshouse, Esquire
Attorney ID #78014
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for Plaintiff
AGREEMENT OF LEASE
LANDLORD:
HAMPDEN CENTER, INC.
TENANT:
Q.J.J., Inc.
Section 1
Section 2
Section 3
Section 4
Section 5
Section 6
Section 7
Section 8
Section 9
Section 10 -
Section 11 -
Section 12 -
Section 13 -
Section 14 -
Section 15 -
Section 16 -
Section 17 -
Section 18 -
Section 19 -
Section 20 -
Section 21 -
Section 22 -
Section 23 -
Section 24
Section 25 -
Section 26 -
Section 27 -
Section 28
Section 29
Section 30
Section 31
Section 32
Section 33 -
Section 34
Section 35 -
Section 36 -
Section 37 -
Section 38 -
Section 39 -
Section 40 -
Section 41 -
Section 42 -
Exhibits
AGREEMENT OF LEASE
LANDLORD:
HAMPDEN CENTER, INC.
TENANT:
Q.J.J., Inc.
AGREEMENT OF LEASE
INDEX
Paqe No.
Premises 1
Term
................ % 1
Fixed Rent
Percentage Rent ............. 3
Gross Sales Defined ........... 4
Additional Rent ............. 6
Common Areas .............. 7
Construction of Premises ........ 8
Use
Utilities 9
Rules and Regulations .......... 10
Change of Improvements by Tenant .... 10
Repairs and Maintenance ......... 11
Waiver of Liability by Tenant ...... 12
Indemnification and Insurance ...... 12
Signs 13
Assignment and Subletting ........ 13
Repair After Casualty .......... 14
Condemnation
.............. 16
Landlord's Remedies Upon Default .... 16
Discharge of Liens ........... 19
Liability of Landlord .......... 20
Rights of Landlord 20
Subordination to Mortgage ........ 20
No Waiver by Landlord .......... 21
Vacation of Premises .......... 21
Memorandum of Lease ........... 21
Rent Demand 21
Notices
................. 22
Applicable Law and Construction ..... 22
Force Majeure .............. 22
Landlord's Lien ............. 22
Quiet Enjoyment ............. 23
Holding Over 23
Brokers 23
Cap t ions 23
Variation in Pronouns .......... 23
Lenders' Approval ............ 23
Security Deposit ............ 24
No Income Participation ......... 24
Hazardous Substances .......... 24
Binding Effect 25
Legal Description of Shopping Center
Description of Premises
Landlord's Work
Tenant's Work
Rules and Regulations
Signage
Guaranty
Ver.7.09.98
REFERENCE PAGE
prepared August 14, 1998
HAMPDEN CENTRE
LANDLORD:
HAMPDEN CENTER, INC.
LANDLORD'S ADDRESS: 444 Park Avenue South
Suite 302
New York, NY 10016
TENANT: Q.J.J., Inc.
TENANT'S ADDRESS: 755~ Bethlehem Pike
Montgomeryville, PA
TENANT'S TRADE N~uME: PC Warehouse
18936
PREMISES:
USE:
LEASE
COMMENCEMENT DATE:
RENT
COMMENCEMENT DATE:
TERMINATION DATE:
2,000 square feet (see Exhibit "B" for
outline of Premises) aka Space D-9
Subject to existin9 Leases, Tenant may
operate a business for the retail sale of
computers and computer accessories.
The earlier of the date Tenant opens for
business or ninety (90) days after
Landlord substantially completes its work.
Three years from the last day of the month
in which the Rent Commencement Date
occurs.
TERM OF LEASE:
ANNUAL FIXED RENT:
MONTHLY INSTALLMENTS
OF FIXED RENT:
PERCENTAGE RENT:
3 years, beginning on the Rent
Commencement Date and ending on the
Termination Date (unless sooner terminated
pursuant to this Lease).
Lease Year 1 ..... $ 24,000.00
Lease Year 2 ..... $ 24,000.00
Lease Year 3 ..... $ 24,000.00
Lease Year 1 ..... $
Lease Year 2 ..... $
Lease Year 3 ..... $
N/A
2,000.00
2,000.00
2,000.00
INITIAL A/TN~JAL
PROMOTIONAL FUND COST:
$0.30/SF annually payable at the
beginning of each lease year.
TENANT'S PROP~ATA SHARE: 1.0% (Subject to a Shopping Center of
228,192 SF)
SECURITY DEPOSIT:
REAL ESTATE BROKER
DUE COMMISSION:
RENEWAL OPTIONS:
$2,000.00
Bennett Williams, Inc.
Provided that Tenant has not defaulted
under the terms hereof, Tenant is granted
one 5-year option to renew this Lease.
ii
ANNUAL OPTION RENT:
Year 1 ....... $ 24,720.00
Year 2 ....... $ 25,461.60
Year 3 ....... $ 26,225.45
Year 4 ....... $ 27,012.21
Year 5 ....... $ 27,822.58
MONTHLY INSTALLMENTS
OF OPTION RENT:
Year 1 ....... $
Year 2 ....... $
Year 3 ....... $
Year 4 ....... $
Year 5 ....... $
2,060.00
2,121.80
2,185.45
2,251.01
2,318.54
LANDLORD WORK:
Landlord shall deliver the premises in
"vanilla shell" condition.
The Reference Page information is incorporated into and made a
part of that certain Lease (the "Lease") made and entered into by
and between HAMPDEN CENTER, INC., as Landlord, and Q.J.J., Inc.,
as Tenant. In the event of any conflict between any Reference
Page information and the Lease, this Reference Page shall
control. The Lease includes Exhibits "A" through "G", all of
which are made a part hereof. Unless otherwise provided herein,
all capitalized terms contained in this Reference Page shall have
the meaning ascribed to them in the Lease.
LANDLORD:
HAMPDEN C~
By:
Title: Vice IP~,~sident
Dated: ~ ..... 1998
TENANT:
Q.J.J., Inc.
Title
Dated: ~7 ~'-, 1998
iii
LEASE
THIS LEASE made and entered into between HAMPDEN CENTER,
INC., as Landlord and Q.j.j., I~]c., as Tenant evidences the
following understandings and agreements. The Reference Page
attached hereto, including all terms defined thereon, is
incorporated as part of this Lease.
WITNESSETH, that for good and valuable consideration,
each to the other in hand paid, the receipt whereof is hereby
acknowledged, the parties agree as follows:
PREMISES
Section 1. (a) Landlord leases to Tenant and Tenant rents from
Landlord the Premises having the frontage and depth indicated on
the Reference Page (all dimensions herein are measur~d from center
of the wall to center of the wall for all party walls and from the
outside face of all exterior walls and store fronts), located in
the building (the "Building") commonly known as Hampden Centre
("Shopping Center"). The Shopping Center is more particularly
described by metes and bounds on Exhibit "A" attached hereto and
made a part hereof by reference.
(b) The Premises are outlined in red on Exhibit "B"
attached hereto and made a part hereof by reference. "Tenant's
Proportionate Share" as used in this Lease shall mean a fraction,
the numerator of which is the gross leasable area of the Premises
and the denominator of which is the gross leasable area of the
Shopping Center. Premises are cross-hatched on Exhibit "B" attached
hereto. Landlord's calculation of Tenant's Proportionate Share is
as indicated on the Reference Page. Gross leasable area of the
Shopping Center means all ground floor area contained in the
Shopping Center designated for tenants' exclusive occupancy.
(c) Landlord expressly reserves (1) the use of the
exterior rear and side walls and roof of the Premises and the
exclusive use of any space between the ceiling of the Premises and
the floor above or the roof of the Building, (ii) the right to
install, maintain, use, repair, and replace the pipes, ducts,
conduits, and wires leading into or running through the Premises
(in locations which will not materially interfere with Tenant's use
thereof), (iii) the right in its sole and absolute discretion to
expand, enlarge, make alterations or additions to, and to build
additional stories on, the Shopping Center and to build other
buildings or improvements on the Common Areas (as hereinafter
defined), and (iv) the right, upon sixty (60) days prior written
notice to Tenant, to transfer and remove Tenant from the Premises
to other available tenant space of equal area and equivalent rent
'in the Shopping Center. (Landlord shall bear the expense of said
transfer or removal as well as the expense of any renovations or
alterations necessary to ma]ce the new space conform substantially
in arrangement and layout with the Premises covered by this Lease).
The within reservations in favor of Landlord are in addition to the
rights granted to Landlord under Section 23 hereof.
TERM
Section 2. (a) The 'Lease Term shall be as indicated on the
Reference Page. The term "Commencement Date" means the day after
Landlord's work on the Premises, as specifically set forth in
Section 8 hereof, will be completed to the extent reasonably
required for the installation by Tenant of Tenant's fixtures,
furnishings and equipment or if no work is to be performed by
Landlord pursuant to Section 8 hereof, on the date keys are
delivered to Tenant by Landlord. Landlord shall notify Tenant in
writing of the date on which Landlord's work on the Premises has
been or will be completed and of the Commencement Date. The parties
agree to endorse this Lease to identify the day, month and year
that the Commencement Date actually occurs.
(b) If Landlord is required to perform work pursuant to
Section 8 hereof, when the actual Commencement Date is established,
the parties will promptly enter into a Supplement to Lease,
prepared by Landlord, stipulating the Commencement Date and the
Expiration Date of the Term.
(c) The term "Lease Year" as used herein shall begin on
the Commencement Date and end twelve months therefrom.
(d) Landlord hereby grants to Tenant the right and
option to extend the Term of this Lease for the option periods
indicated in the Renewal Option Section of the Reference Page (each
a "Renewal Term"). Tenant shall notify Landlord in writing of its
election to extend this Lease for each Renewal Term not less than
six (6) months nor more than twelve (12) months prior to the
expiration date of the then existing term. Each Renewal Term shall
be upon all of the terms, covenants, and conditions of this Lease
except that the Annual Fixed Rent and Percentage ~Rent payable
during such Renewal Term shall be as set forth in Sections 3(d) and
4(a) hereof, respectively. Tenant shall have no right to extend or
renew this Lease if it is in default hereunder at the time of
giving its notice of renewal, nor shall any renewal notice be
effective if Tenant is in default hereunder as of the first day of
the extended term which was the subject of such notice.
FIXED RENT
Section 3. (a) Tenant agrees, without notice or demand and
without any deduction or setoff, to pay to Landlord, at Landlord's
Address shown on the Reference Page, or at such other place as
Landlord may designate, as a fixed minimum rent for the Premises
per Lease Year, the Annual Fixed Rent indicated on tile Reference
Page for such Lease Year iu fixed equal monthly installments during
each Lease Year equal to the Monthly Installments of Fixed Rent
indicated on the Reference Page for such Lease Year, each Monthly
Installment of Fixed Rent to be payable in advance on the first day
of each month during the Term. Tenant agrees to pay to Landlord, if
assessed by the jurisdiction in which the Shopping Center is
located, any sales or excise tax imposed, assessed or levied in
connection with Tenant's payment of the Annual Fixed Rent.
(b) Upon execution of this Lease, Tenant shall deposit
with Landlord (i) the Security Deposit as indicated on the
Reference Page to be held by Landlord during the Term pursuant to
the provisions of Section 39 hereof; and (ii) the first Monthly
Installment of Fixed Rent, and one month's worth of Additional Rent
(as hereinafter defined). The funds so deposited pursuant to Item
(ii) of this Subparagraph (b) shall be applied to the Monthly
Installment of Fixed Rent and the Additional Rent due for the first
full month of the Term.
(c) Tenant's obligation to pay rent (as defined in
Subparagraph 6(c)) shall begin on the earlier to occur of the date
(said date is hereinafter referred to as the "Rental Commencement
Date") upon which Tenant shall open for business in the Premises or
the day after the expiration of the "Fixturing Period". The
Fixturing Period shall begin on the Commencement Date and continue
for the number of days specified on the Reference Page. Rent due
for any period which is less than a calendar month, whether prior
to the Rental Commencement Date or after the expiration Date, shall
be prorated on a daily basis and shall be computed on the basis of
Tenant's monthly rental payments (utilizing a thirty (30) day month
for purposes of such computation). Tenant shall pay to Landlord the
rent for each such day (i) concurrently with the first Monthly
Installment of Fixed Rent due hereunder; (ii) upon vacating the
Premises as herein provided; or (iii) upon demand from Landlord, as
the case may be.
(d) In the event Tenant exercises its right to extend
the Term for a Renewal Term, the Annual Fixed Rent payable during
the Renewal Term shall be equal to the amount indicated in the
Renewal Option section of the Reference Page for such Renewal Term
in fixed equal monthly installments equal to the Monthly
Installment of Fixed Rent indicated ill the Renewal Option section
of the Reference Page for such Renewal Term each to be payable in
advance on the first day of each month during such Renewal Term.
(e) Tenant recognizes that late payment of any rent or
other sum due hereunder will result in administrative expense to
Landlord, the extent of which additional expense is extremely
difficult and economically impractical to ascertain. Tenant
therefore agrees that if rent or any other sum is due and unpaid
fifteen (15) days after said amount is due, such amount shall be
increased by a late charge in an amount equal to the greater of:
(a) Fifty Dollars ($50.00) or (b) a sum equal to five percent (5%)
of the unpaid amount. The amount of the late charge shall be
reassessed and added to Tenant's obligation for each successive
monthly period until paid. The provisions of this Section shall not
in any way affect Landlord's remedies pursuant to Section 20 of
this-Lease.
PERCENTAGE RENT
Section 4. (a) In addition to Annual Fixed Rent, and as a
material inducement for Landlord to lease the Premises to Tenant,
Tenant agrees to pay to Landlord during each Lease Year the
Percentage Rent indicated on the Reference Page for such Lease
Year. During each Renewal Term, Percentage Rent shall be equal to
the Percentage Rent indicated in the Renewal Option section of the
Reference Page for such"~enewal Term.
(b) In any Lease Year in which (i) Tenant shall cease
conducting business in the Premises, (ii) the Term is terminated,
or (iii) there shall be an abatement of Annual Fixed Rent, so that
the Lease Year is less than twelve (12) calendar months, Tenant
shall pay to Landlord prorated Percentage Rent equal to the amount
by which the percentage of Tenant's Gross Sales set forth on the
Reference Page for such lesser period exceeds the Annual Fixed Rent
paid during the prior or subsequent Lease Year multiplied by the
number of months in the shortened Lease Year divided by twelve
(12).
(c) On or before the twentieth (20th) day of each
calendar month during the Term, Tenant shall deliver to Landlord a
complete and accurate statement, signed and certified by Tenant,
showing in detail Gross Sales (as hereinafter defined) for the
previous month and Gross Sales for each prior month during the
current Lease Year.
(d) (i) During the first Lease Year, Percentage Rent
shall be payable in one lump sum no later than thirty (30) days
after the end of the first Lease Year. (ii) Commencing with the
second Lease Year and continuing throughout the term of this Lease,
Percentage Rent shall be payable on a monthly basis as follows: No
later than thirty (30) days before the first day of each Lease
Year, Landlord shall send Tenant an estimate of annual Percentage
Rent due for said Lease Year based on the amount of Percentage Rent
paid by Tenant in the prior consecutive twelve (12) months. The
estimate shall be adjusted to equal twelve (12) times the average
monthly Percentage Rent due if the Tenant has not been in
possession of the premises for twelve (12) months. On or before the
first of each month of said Lease Year, Tenant shall pay to
Landlord one-twelfth (1/12) of the estimated annual Percentage Rent
due for the said Lease Year. (iii) Within (30) days after the end
of each Lease Year, Tenant shall deliver to Landlord a complete and
accurate statement, signed and certified by Tenant, showing (a)
Gross Sales for such Lease Year; and (b) the computation of
Percentage Rent for such Lease Year. In the event such statement
reflects that Tenant owes Landlord Percentage Rent in addition to
the sum of monthly Percentage Rent payments previously made during
such Lease Year, Tenant shall pay the amount of such additional
Percentage Rent to Landlord at the time such statement is delivered
to Landlord. In the event such statement reflects that the sum of
monthly Percentage Rent payments previously made during such Lease
Year exceeds the Percentage Rent actually due for such Lease Year,
the amount of such excess shall be credited against the next due
monthly payments of Percentage Rent hereunder. If such excess
should occur in the last Lease Year of the Term, Landlord shall pay
the amount of such excess to Tenant within thirty (30) days after
receipt of such statement.
(e) During the Term, Tenant shall not directly or
indirectly engage in any similar or competing business within three
(3) miles of the Shopping Center. This restriction shall not apply
to Tenant's stores, if any, presently open and in operation within
such area. As used in this Section 4, the word "Tenant" shall
include: (i) if Tenant is a corporation, all of Tenant's officers,
directors, employees, or shareholders, jointly and s%verally, and
all entities in which Tenant or its officers, directors, employees,
or shareholders, jointly and severally, shall have any interest;
and (ii) if Tenant consists of one (1) or more partners,
individuals, and/or unincorporated entities, each partner, the
respective spouses and children of such partners and individuals,
jointly and severally, and all corporations and/or other entities
in which such partners, individuals, entities, or any member of
such unincorporated entities, jointly and severally, shall have any
interest.
(f) If Tenant shall engage in any similar or competing
business in violation of Section 4 (e) hereof, in addition to any
and all other remedies available to Landlord at law and in equity,
the amount of Gross Sales, made by such competing or similar
business shall be included in Gross Sales for the Premises in the
computation of Percentage Rent.
GROSS SALES DEFINED
Section 5. (a) The term "Gross Sales" as used herein shall be
construed to include the entire amount of the actual salts price of
all goods and services provided at, in, on, or from the Premises,
including, without limitation, mail or telephone orders received or
filled at the Premises, all deposits not refunded to purchasers,
orders taken at or from the Premises (although said orders may be
filled elsewhere), and sales and receipts by any sublessee,
concessionaire, licensee or other party in the Premises. Each
installment or credit sale shall be treated as a sale for the full
price in tile month during which such installment or credit sale
shall be made, irrespective of the time when Tenant shall receive
payment (whether full or partial) from its customer. Layaway sales,
so-called, shall be included in the Gross Sales to the extent of
the down payment and any further payments thereupon during each
calendar month. Gross Sales shall not include the following: (i)
sums collected and paid out by Tenant for any sales or excise tax
imposed by any duly constituted governmental authority; (ii) the
exchange of merchandise between the stores of Tenant, if any, where
such exchanges of goods or merchandise are made solely for the
convenient operation of the business of Tenant and not for the
purpose of consummating a sale which has theretofore been made at,
in, on, or from the premises, and/or for the purpose of depriving
Landlord of the benefit of a sale which otherwise would be made at,
in, on, from, or upon the Premises; (iii) the amount of returns to
shippers or manufacturers; (iv) the amount of any cash or credit
refund made upon any sale where the merchandise sold, or some part
thereof, is thereafter returned by the purchaser and accepted by
Tenant; (v) sales of fixtures; or (vi) all sums and credits
received in settlement of claims for loss or damage to merchandise.
(b) Ail sales shall be recorded by means of cash
registers or computers ("Registers") which display to the customer
the amount of the transaction. All registers shall be equipped with
sales totalizer counters for all sales categories and a sequential
transaction totalizer counter, which counters are locked in,
constantly accumulating, and which cannot be reset. Said registers
shall further contain tapes upon which sales details and sequential
transaction numbers are imprinted. Beginning and ending sales
totalizer readings shall be made a matter of daily record. Landlord
may require Tenant to provide Landlord by noon of the next business
day a recapitulation of Gross Sales to be set forth upon forms
provided by Landlord. Failure to make available a proper receipt to
each customer upon his request of the same upon payment shall
constitute a breach of this Lease.
Tenant shall keep on the Premises, or at its principal
office, true and complete records and accounts of all Gross Sales,
including daily bank deposits, in, at, and from the Premises. Such
books and records shall include such sale records as would normally
be examined by an accountant pursuant to generally accepted
auditing standards in performing an audit of Tenant's sales or the
sales of its subtenants or concessionaires.
On or before the twentieth (20th) day of each month,
Tenant shall furnish to Landlord a true and accurate statement for
each preceding month of all Gross Sales during said preceding month
(showing the refunds and returns deducted in computing the amount
of such Gross Sales), which statement shall be certified by an
authorized representative of Tenant to be correct. Tenant agrees to
give Landlord access during business hours to such books and
records. Tenant agrees that it will keep and preserve for at least
thirty-six (36) months after the end of each Lease Year all sales
slips, cash register tape readings, sales books, bank books, or
duplicate deposit slips, and other evidence of Gross Sales for such
year. Landlord shall have the right at any time and from time to
time to audit all of the books of account, bank statements,
documents, records returns, papers, and files of Tenant relating to
Gross Sales and Tenant on request by Landlord shall make all such
matters available for such examination at the premises or at its
principal office. If Landlord should have such an audit made for
any year and the Gross Sales shown by Tenant's statement for such
year shall be found to be understated by more than three percent
(3%), then, in addition to immediately paying Landlord the full
amount of the understated Percentage Rent, Tenant shall pay to
Landlord the cost of such audit. Landlord's right to have such an
audit made with respect to any year shall expire thirty-six (36)
months after Tenant's statement for such year shall have been
delivered to Landlord. Landlord shall have the right to terminate
this Lease upon notice to Tenant if there should be more than two
(2) audits during the Lease Term which reveal understatements of
gross sales by Tenant by more than three percent (3%).
(c) Ail statements of Gross Sales shall be delivered to
Landlord's Address or to such other place as Landlord may from time
to time direct by written notice to Tenant.
(d) ComPutation of the Percentage Rent specified herein
shall be made separately with regard to each calendar month and
each Lease Year of the Term hereof, it being understood and agreed
that the Gross Sales of any Lease Year and the Percentage Rent due
thereon shall have no bearing on or connection with the Gross Sales
of any other Lease Year.
(e) It is understood and agreed that Landlord shall in
no event be construed or held to be a partner, co-venturer or
associate of Tenant in the conduct of Tenant's business, nor shall
Landlord be liable for any debts incurred by Tenant in the conduct
of Tenant's business. It is understood and agreed that the
relationship is and at all times shall remain that of Landlord and
Tenant. Landlord and Tenant acknowledge and agree that neither
shall be subject to any implied obligations to the other, by reason
of the fact that this Lease provides for the payment of Percentage
Rent.
ADDITIONAL RENT
Section 6. (a) Tenant agrees to pay to Landlord, as additional
rent ("Additional Rent") for the Premises, throughout the Term, the
following amounts:
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(i) Tenant's Proportionate Share of the cost of
operating and maintaining the Common Areas, which areas are defined
in Section 7, (the "Common Area Cost"), including, without
limitation, the cost of the following: lighting, utilities,
cleaning, snow and trash removal, line painting, security (if
provided), management fees not to exceed 5% of all rent and
additional rent charged for the Shopping Center, maintenance,
materials, labor costs, equipment, (including, without limitation,
the cost of service agreements on equipment), tools, general
repairs, employee benefits and payroll taxes, accounting fees,
legal fees, permits, license and inspection fees, sales, use and
service taxes, and the repair or replacement of paving, curbs,
stations, first aid stations, comfort stations, stairways, truck
ways, loading docks, package pick-up stations, sidewalks, ramps,
the parking lot, driveways, any garage, landscaping, drainage
facilities, and lighting facilities, including traffic lights, as
may be necessary from time to time, and any other cost of operation
of the improvements on the Common Areas. The Common Area Costs
shall include depreciation of equipment acquired for use in Common
Area maintenance, but shall not include the original cost thereof.
(ii) Tenant's Proportionate Share of any real estate and
ad valorem taxes and assessments (1) which shall or may become a
lien upon, or be assessed, imposed, or levied by lawful taxing
authorities against the land upon which the Shopping Center is
located, the Building, and other improvements on the Shopping
Center for the tax years (the years for which a lien is imposed)
falling wholly or partially within the Term of this Lease; (2)
which arise in connection with the use, occupancy, or possession of
the Shopping Center or any part thereof or any land, buildings, or
other improvements thereon; (3) which become due and payable out of
or for the Shopping Center, any part thereof, or any land,
buildings, or other improvements thereon; or (4) which are imposed,
assessed, or levied in lieu of, in substitution for, or in addition
to any or all of the foregoing (collectively the "Tax Cost"). The
Tax Cost shall include any fees, expenses or costs (including
attorneys' fees, expert fees and appraisal fees) incurred by
Landlord in protesting any assessments, levies or the tax rate, but
shall not include any charge (such as a water meter charge) which
is measured by actual user consumption. A real estate tax bill or
copy thereof submitted by Landlord to Tenant shall be conclusive
evidence of the amount of any real estate taxes, assessments, or
installment thereof. In addition, Tenant shall pay all taxes levied
against personal property, fixtures and Tenant's improvements in
the Premises. If such taxes for which Tenant is liable are levied
against Landlord or Landlord's property and if Landlord elects to
pay the same or if the assessed value of Landlord's property is
increased by inclusion of any such items and Landlord elects to pay
the taxes based on such increase, Tenant shall pay to Landlord upon
demand that part of such taxes for which Tenant is liable
hereunder.
(iii) Tenant's Proportionate Share of all premiums for
public liability, fire and extended coverage or all risk, business
interruption, and/or rent loss, and/or any other insurance policy
which may reasonably be carried by Landlord insuring the Premises,
the Building, the Common Areas, the Shopping Center, or any
improvements therein (the "Insurance Cost").
(iv) A proportionate share of all utilities services not
measured by a separate meter for the Premises and provided to
Tenant and other tenants of the Shopping Center (the "Utility
Cost"). Tenant's share of the Utility Cost shall be determined on
the basis of the total square feet of floor area of the Premises as
a percentage of the total square feet of floor area leased by all
tenants provided such services. Tenant shall pay its share of such
cost, together with an amount equal to fifteen percent (15%)
thereof as payment of administrative costs of Landlord, within ten
(10) days after demand therefor. Landlord shall not bill Tenant for
such cost more often than monthly. In the event Landlord determines
that it is not appropriate to base the utility bills on Tenant's
proportionate share due to the nature of Tenant's business
activities, Landlord may use its discretion in allocating such
bills.
(v) Tenant shall pay to Landlord prior to the
Commencement Date the Annual Promotional Fund Cost indicated on the
Reference Page, as Tenant's initial annual payment for Tenant's
share of the costs ("Promotional Fund Costs") of a promotional fund
("Promotional Fund") to be used to pay all costs and expenses
incurred in connection with the formulation and %execution of
publicity programs for the promotion of the Shopping Center. Such
programs, which, at Landlord's option, shall be determined by an
advertising agency or firm or volunteer committee of tenants, may
include, without limitation, special events, shows, displays,
advertisements, seasonal events, and promotional literature;
provided, however, that Landlord or an outside advertising agency
approved by Landlord shall have the right to review and approve
such publicity programs, the items on the Promotional Fund budget
for each year, and any amendments to said budget. A portion of the
Promotional Fund may be applied to pay costs of administering the
Promotional Fund. Tenant's initial payment to the Promotional Fund
shall be increased in such' Lease Years, if any, that the Annual
Fixed Rent is increased pursuant to Section 3 hereof by the
percentage increase in the Annual Fixed Rent. Tenant agrees to
advertise in any and all special Promotional Fund newspaper
sections, tabloids or other advertisements, (including audio and/or
visual media) and agrees to cooperate and participate fully in all
special sales and promotions sponsored by the Promotional Fund.
(b) Tenant's Proportionate Share of the Common Area
Cost, the Tax Cost, and the Insurance Cost shall be estimated by
Landlord no later than thirty (30) days prior to the first day of
each Lease Year. Landlord shall notify Tenant of such estimates
which shall be paid, together with an amount equal to fifteen
percent (15%) thereof as payment of administrative costs of
Landlord, by Tenant in advance, on the first day of each and every
calendar month throughout such Lease Year. At the end of the Lease
Year, when Landlord has calculated the exact amount of Tenant's
Proportionate Share of such costs, Landlord shall notify Tenant of
such exact amount. Any deficiencies in the payments theretofore
(including said administrative costs) made by Tenant shall be paid
by Tenant to Landlord within ten (10) days of receipt of said
notice. Any surplus paid by Tenant during the preceding Lease Year
shall be applied against the next due monthly installments of such
costs due from Tenant. During any part of the Term which shall be
less than a full calendar year, any and all such costs shall be
prorated on a daily basis so that Tenant shall only pay Tenant's
Proportionate Share of such costs attributable to the portion of
the calendar year occurring within the Term.
(c) The term "rent" as herein used shall include Annual
Fixed Rent, Percentage Rent and Additional Rent.
COMMON AREAS
Section 7. Subject to the Rules and Regulations specified in
Section 11 hereof and Landlord's rights under Section l(c) hereof,
Landlord hereby grants to Tenant and Tenant's employees, agents,
customers, and invitees the nonexclusive right, during the Term, to
use, subject to the rights of governmental authorities, easements,
public highways and other restrictions of record, in common with
others granted the use thereof, the Common Areas located within the
Shopping Center. The term "Common Areas" as used in this Lease
shall mean the entire Shopping Center less the gross leasable area
of the Shopping Center and shall include, without limitation, the
parking areas, roadways, pedestrian sidewalks, loading docks,
delivery areas, landscaped areas, and all other areas or
improvements which may be provided by Landlord for the general use
of tenants of the Building and the Shopping Center and their
agents, employees, and customers. Landlord shall be responsible for
the operation, management, and maintenance of the Common Areas. The
manner in which the Common Areas shall be maintained and the
expenditures therefor shall be at the reasonable discretion of
Landlord. Landlord may temporarily close parts of the Common Areas
for such periods of time as may be necessary for (i) temporary use
as a work area in connection with the construction of buildings or
other improvements within the Shopping Center or contiguous
property; (ii) repairs or alterations in or to the Common Areas or
to any utility-type facilities; (iii) preventing the public from
obtaining prescriptive rights in or to the Common Areas; (iv)
emergency or added safety reasons; or (v) doing and performing such
other acts as in the use of good business judgment Landlord shall
determine to be appropriate for the Shopping Center; provided,
however, that Landlord shall use reasonable efforts not to unduly
interfere with or disrupt Tenant's business.
CONSTRUCTION OF PREMISES
Section 8. (a) Prior to the Commencement Date, Landlord shall
complete the improvements to the Premises described in Exhibit "C"
attached hereto and made a part hereof by reference. Tenant hereby
approves Exhibit "C" and all of the improvements, plans and
specifications described therein. It is understood and agreed by
Tenant that changes in such improvements, plans and specifications
which will not materially interfere with Tenant's use of the
Premises and which may be necessary during construction of tile
Premises shall not affect, invalidate, or change this Lease or any
of its terms and provisions.
(b) Landlord's work in accordance with Exhibit "C" shall
be deemed approved by Tenant in all respects thirty (30) days after
the Commencement Date, unless prior thereto Landlord receives
written notice from Tenant of any defect in such work. Any
disagreement which may arise between Landlord and Tenant concerning
the work to be performed by Landlord shall be resolved by tile
decisions of Landlord's architect.
(c) Tenant shall complete the improvements to the
Premises described in Exhibit "D" attached hereto and made a part
hereof by reference. Landlord and Tenant hereby approve Exhibit "D"
and all of the improvements, plans and specifications described
therein, provided that Tenant's work described in Exhibit "D" shall
be performed in accordance with the provisions of Section 12(a) (i)
hereof; and provided further that any change in the improvements,
plans and specifications described in Exhibit "D" shall be approved
by Landlord in writing in accordance with the provisions of Section
12(a) (ii) hereof.
USE
Section 9. (a) The Premises shall be occupied and used
exclusively for the purposes described on the Reference Page and
for no other use, unless Tenant has obtained Landlord's prior
written consent, which consent may be withheld ii1 Landlord's sole
discretion for any reason or no reason whatsoever. Tenant shall
commence business in the Premises on or before sixty (60) days
after the Commencement Date, shall operate continuously one hundred
percent (100%) of the Premises during the entire Term, and shall
keep the Premises fully stocked with merchandise and staffed with
personnel so as to maximize Gross Sales at the Premises at all
times. Tenant shall conduct its business in the Premises on all
business days during all hours as from time to time may be
reasonably determined by Landlord to be consistent with the days
and hours of other tenants in the Shopping Center, but in no event
less than eight (8) hours in a business day, five (5) days a week
and forty (40) hours a week (Holidays excepted). Tenant may close
the Premises during reasonable periods for repairing, cleaning or
decorating the Premises, with the prior written consent of
Landlord.
(b) Tenant agrees to conduct its business in the
Premises under Tenant's Trade Name as indicated on the Reference
Page.
(c) Tenant shall use and occupy the Premises in
accordance with all governmental laws, ordinances, rules, and
regulations and shall keep the Premises in a clean, careful, safe,
and proper manner. Tenant shall not use, or allow the Premises to
be used, for any purpose other than as specified herein and shall
not use or permit the Premises to be used for Any unlawful,
disreputable, or immoral purpose or in any way that will injure the
reputation of the Shopping Center. Tenant shall not permit any
activities in the Premises which may create or cause noise levels
which are audible outside the Premises and disturbing to
neighboring residences, other tenants or their customers or
employees. Tenant shall not permit the Premises to be occupied in
whole or in part by any other person or entity. Tenant shall not
cause or permit the use or occupancy of the Premises to be or
remain a nuisance or disturbance, as determined by Landlord in its
sole discretion, to neighboring residences, other tenants,
occupants, or users of the Shopping Center.
UTILITIES
Section 10. (a) (i) Landlord shall provide, up to the lease line of
the Premises, the necessary mains and conduits to provide water,
sewer, gas (if available by public utilities) and electric service
to the Premises. Tenant shall duly and promptly pay to the supplier
thereof all bills for utilities consumed in the Premises measured
by a separate meter for the Premises.
(ii) If Tenant shall use any utility service for any
purpose in the Premises which is or can be measured by a separate
meter for the Premises and Landlord shall elect to supply such
service, Tenant shall accept and use the same as tendered by
Landlord and pay Landlord therefor at the applicable rates charged
by Landlord. In no event shall Tenant pay to Landlord for any such
service more than would be chargeable to Tenant by the utility
company providing such service. Payment for any and all water, gas,
sewer, and electricity service used by Tenant, if furnished by
Landlord, shall be made monthly as Additional Rent within thirty
(30) days of the presentation by Landlord to Tenant of bills
therefor.
(iii) Notwithstanding anything to the contrary provided in
this Section 10 or in Subsection 6(a) (iv), Tenant acknowledges that
water service to the Shopping Center shall be supplied by Landlord,
and Tenant agrees to purchase same from Landlord and to pay the
charges therefor when bills are rendered at the applicable rates.
Such water service shall be measured by a master meter and Tenant's
share of the charges for such service shall be allocated by
Landlord, at Landlord's option, either (a) on the basis of the
total square feet of floor area at the Premises as a percentage of
the total square feet of floor area leased by all tenants in the
Shopping Center provided such water service; or (b) based upon
readings taken from a water sub-meter for the Premises, if Landlord
elects to install such a sub-meter. Ail such charges shall be paid
monthly to Landlord as Additional Rent within thirty (30) days of
the presentation by Landlord to Tenant of bills therefor.
(b) In the event Landlord supplies any sanitary sewer
facilities to the Premises, Tenant shall pay as Additional Rent
Tenant's Proportionate Share of the cost of operating and
maintaining such facilities, including, without limitation, the
rental cost and/or amortization of such facilities.
(c) Landlord shall have the right to cut off and
discontinue, without notice to Tenant, ahy utility or other service
whenever and during any period for which bills for the same, rent,
or other obligations hereunder are not promptly paid or performed
by Tenant.
(d) The Obligations of Tenant to pay for utility service
as herein provided shall commence on the Commencement Date.
Landlord shall not be liable in damages or otherwise should the
furnishing of such services to the Premises be interrupted by fire,
accident, riot, strike, act of God, the making of necessary repairs
or improvements, or other causes beyond the control of Landlord.
(e) Landlord shall not be liable in the %event of any
interruption in the supply of any utilities. Tenant agrees that it
will not install any equipment which will exceed or overload the
capacity of any utility facilities serving the Premises and that if
any equipment installed by Tenant shall require additional utility
facilities, installation of the same should be at Tenant's expense,
but only after Landlord's written approval of same.
RULES AND REGULATIONS
Section 11. Tenant agrees that Landlord has the right, at any time
and from time to time, for the general welfare of the Shopping
Center and its occupants, to impose reasonable rules and
regulations of general application governing the conduct of
occupants of the Shopping Center and their use of the Common Areas.
Tenant agrees to comply with any and all such rules and regulations
imposed by Landlord, including, without limitation, those rules and
regulations set forth in Exhibit "E".
CHANGE OF IMPROVEMENTS BY TENANT
Section 12. (a) (i) Upon prior written approval of Landlord,
Tenant shall have the right during the Term to make such interior
alterations, changes and improvements to the Premises (except
structural alterations, changes, or improvements), as may be proper
and necessary for the conduct of Tenant's business and for the full
beneficial use of the Premises, provided Tenant shall (A) pay all
costs and expenses thereof; (B) make such alterations, changes, and
improvements in a good and workmanlike manner, with new materials
of first-class quality, and in accordance with all applicable laws
and building regulations; and (C) provide Landlord reasonable
assurances, prior to commencing such alterations, changes, and
improvements, that payment for the same will be made by Tenant.
Tenant shall not make any structural alterations, changes or
improvements to the Premises.
(ii) In order to obtain Landlord's approval for such
alterations, changes, and improvements, Tenant shall submit to
Landlord plans and specifications describing the design, materials,
style, and appearance of such alterations, changes, and
improvements with reasonable particularity. Within thirty (30) days
after receipt of such plans and specifications, Landlord shall
notify Tenant of any objections of Landlord. Tenant shall cure the
cause for such objection within thirty (30) days after receipt of
such notice and shall resubmit such plans and specifications for
Landlord's review and approval. Landlord may charge Tenant a
reasonable charge to cover Landlord's overhead as it relates to
such proposed work. Prior to construction, Tenant shall provide
such financial assurances as Landlord shall require to assure
payment of the costs thereof and to protect Landlord against any
loss from any mechanic's, materialmen's, or other liens. Tenant
shall not be permitted to enter upon the roof of any building
without the prior consent of Landlord.
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(b) Except as otherwise provided below, all signs,
equipment, furnishings, nonpermanent improvements, and trade
fixtures within the Premises, installed in the Premises by Tenant,
and paid for by Tenant, shall remain the property of Tenant and
shall be removed by Tenant upon the termination of this Lease,
provided that any of such as are affixed to the Premises and
require severance shall be removed by Tenant and Tenant shall
repair any damage caused by such removal. By written notice to
Tenant prior to expiration or termination of the Term, Landlord
shall have the right to require Tenant to leave in the Premises
equipment, improvements, or fixtures attached to the Premises or
the Building. Anything contained herein to the contrary
notwithstanding, the HVAC Facilities, and related systems shall at
all times remain the property of Landlord and shall not be removed
by Tenant.
REPAIRS AND MAINTENANCE
Section 13. (a) Landlord shall maintain the foundation, the
exterior structural walls, and the roof of the Building in good
repair, except that Tenant shall rei~urse Landlord for the cost of
any repair occasioned by the act or negligence of Tenant, its
agents, employees, invitees or licensees. Landlord shall not be
required to make any other improvements or repairs of any kind upon
the Premises and appurtenances thereto, except as otherwise
provided in this Lease. If the Premises should become in need of
repairs required to be made by Landlord hereunder, Tenant shall
give immediate written notice thereof to.Landlord, and Landlord
shall not be responsible ill any way for failure to ma]ce any such
repairs until a reasonable time shall have elapsed after the giving
of such written notice. Landlord's sole liability shall be limited
to the cost of the repair. Landlord shall not be liable to Tenant
for any interruption of Tenant's business or inconvenience caused
Tenant or Tenant's assigns, sublessees, customers, invitees,
employees, licensees or concessionaires in the Premises on account
of Landlord's performance of any repair, maintenance or replacement
in the Premises, any other work therein or in'the Shopping Center
pursuant to Landlord's rights or obligations under this lease so
long as such work is being conducted by Landlord in accordance with
the terms of the Lease and without gross negligence or gross
disregard for Tenant's business operations. Unless otherwise
provided herein, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference
with Tenant's business arising from the making of any repairs,
alterations or improvements in or to any portion of the Shopping
Center or the Premises or in or to fixtures, appurtenances and
equipment therein.
(b) At the sole cost and expense of Tenant and
throughout the Term, Tenant shall keep and maintain the Premises in
good order, condition, and repair, in a clean, sanitary, and safe
condition in accordance with the laws of the State in which the
Premises are located, and in accordance with all directions, rules,
and regulations of the health officer, fire marshal, building
inspector, or any other proper officer of the governmental agencies
having jurisdiction over the Premises. Without limiting the
foregoing, Tenant shall be responsible for maintenance, repair,
and, with Landlord[s consent, replacement as needed of all
electrical, plumbing, heating, ventilating, air conditioning, and
utility systems located on the Premises, all plate glass and
windows, window fittings and sashes, and interior and exterior
doors, all fixtures within the Premises, all interior walls, floors
and ceilings, water heaters, termite and pest extermination, all of
Tenant's improvements and trade fixtures. Tenant shall keep and
maintain the Premises in accordance with all requirements of law
concerning the manner, usage, and condition of the Premises and
appurtenances thereto, as the same shall be in effect from time to
time. Tenant shall permit no waste, damage, or injury to the
Premises. If at any time and from time to time during the Term, and
any renewal thereof, Tenant shall fail to make any maintenance,
11
repairs or replacements in and to the Premises as required in this
Lease, Landlord shall have the right, but not the obligation, to
enter the Premises and to make the same for and on behalf of
Tenant, and all sums so expended by Landlord shall be deemed to be
Additional Rent hereunder and payable to Landlord upon demand.
Tenant shall keep in force throughout the Lease Term maintenance
contracts for the heating, ventilating and air conditioning systems
reasonably satisfactory to Landlord.
WAIVER OF LIABILITY BY TENANT
Section 14. Landlord and Landlord's agents and employees shall not
be liable for, and Tenant unconditionally and absolutely waives any
and all causes of action, rights, and claims against Landlord and
its agents and employees arising from, any damage or injury to
person or property, regardless of cause, sustained by Tenant or any
person claiming through or under Tenant, resulting from any
accident or occurrence in or upon the Premises of any other part of
the Building or the Shopping Center, unless the same shall be due
to the gross negligence of Landlord and/or Landlord's agents and
employees. This provision shall survive the termination or
expiration of this Lease.
INDEMNIFICATION AND INSURANCE
Section 15. (a) Tenant will defend, indemnify, and save Landlord
harmless from and against any and all claims, actions, lawsuits,
damages, liability, and expense (including, without limitation,
attorneys' fees) arising from loss, damage, or injury to persons or
property occurring in, on, or about the Premises, arising out of
the Premises, or occasioned wholly or in part by any act or
omission of Tenant, Tenant's agents, contractors, customers or
employees.
(b) At all times from the Commencement Date and during
the Term or any Renewal Term, Tenant shall, at its expense, keep in
full force and effect the following insurance policies insuring
Tenant, Landlord, and Landlord's mortgagee: (i) public liability
insurance in companies acceptable to Landlord with minimum limits
of (a) One Million Dollars ($1,000,000.00) on account of bodily
injuries to or death of one (1) person, and One Million Dollars
($1,000,000.00) on account of bodily injuries to or death of more
than one (1) person as the result of any one (1) accident or
disaster, and One Million Dollars ($1,000,000.00) on account of
damage to property; or (b) One Million Dollars ($1,000,000) Bodily
Injury Liability and Property Damage Liability Combined Single
Limit Coverage; and (ii) all-risk hazard insurance covering
Tenant's improvements to the Premises and all equipment and
contents within the Premises for the full replacement value and
business interruption insurance for a minimum of six (6) months.
Prior to the Commencement Date and upon each renewal, Tenant shall
deposit with Landlord the policies of such insurance, or
certificates thereof, showing Landlord and its mortgagee as
additional insureds, and shall update the same prior to expiration
thereof. Tenant's insurance shall not be cancelable without thirty
(30) days prior written notice to Landlord.
(c) Tenant shall not carry any stock of goods or do
anything in or abou~ the Premises which will in any way increase
the insurance rates on the Premises, the Building and/or the
Shopping Center. Any such increase shall be paid by Tenant to
Landlord within thirty (30) days after written demand therefor.
(d) Ail casualty coverage insurance carried by Landlord
or Tenant shall provide for waiver of subrogation against Landlord,
Tenant and other tenants in the Shopping Center on the part of the
insurance carrier. Evidence of the existence of such waiver shall
be furnished by either party to the other party on request.
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SIGNS
Section 16. Prior to opening for business, Tenant shall install an
identification sign for the Premises at its cost and expense, which
sign shall comply with Exhibit "F". Tenant shall not erect or
install any other signs except as expressly permitted by Landlord.
All permitted signs shall comply with the terms and provisions of
Exhibit "F" and all requirements of appropriate governmental
authorities. All necessary permits or licenses shall be obtained by
Tenant. Tenant shall maintain all permitted signs in good condition
and repair at all times and shall save Landlord harmless from any
injury to person or property arising from the erection and
maintenance of said signs. Upon vacating the Premises, Tenant shall
remove all signs and repair all damage caused by such removal.
ASSIGNMENT AND SUBLETTING
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Section 17. (a) Neither this Lease nor any or all interest herein
shall be sold, mortgaged, pledged, encumbered, assigned,
transferred, or otherwise disposed of in any manner by Tenant,
voluntarily or involuntarily, by operation of law, or otherwise,
nor shall the Premises or any part thereof be sublet, used, or
occupied for the conduct of any business by any third person, firm,
or corporation or for any purpose other than herein authorized,
except with the prior written consent of Landlord, which consent
Landlord may grant or withhold in its sole discretion. A sale or
sales of fifty percent (50%) or more of the capital stock of Tenant
(if Tenant is a corporation) or of the interest in capital,
profits, or losses of Tenant (if Tenant is a partnership) shall be
deemed to be a prohibited assignment of this Lease within the
meaning of this Section 17. In the event Tenant desires to sublet
the Premises, or any portion thereof, or assign this lease, Tenant
shall give written notice thereof to Landlord at least ninety (90)
days but not more than one hundred eighty (180) days prior to the
proposed commencement date of such subletting or assignment, which
notice shall set forth the name of the proposed subtenant or
assignee, the relevant terms of any sublease or assignment and
copies of financial reports and other relevant financial
information on the proposed subtenant or assignee. Notwithstanding
any permitted assignment or subletting, Tenant shall at all times
remain directly and primarily liable for the payment of the rent
herein specified and for compliance with all of its other
obligations under this Lease. Upon the occurrence of a default
under Section 20 of this Lease, which is not cured within the
applicable grace period, if the Premises or any part thereof are
then sublet, Landlord, in addition to any other remedies provided
herein or by law, may collect directly from such subtenant all
rents due and becoming due to Tenant under such sublease and apply
such rent against any sums due to Landlord from Tenant hereunder.
No such collection directly from an assignee or subtenant shall be
construed to constitute a novation or a release of Tenant from the
further performance of Tenant's obligations hereunder nor shall it
constitute consent of the sublease or assignment. Any guaranty of
Tenant's performance executed as consideration for this Lease shall
remain in full force and effect before and after any such
assignment or subletting. Landlord may require Tenant, and Tenant
hereby agrees, to execute a guaranty of this Lease before Landlord
consents to any such assignment or sublease and to cause the
guarantor of Tenant's Lease to execute an acknowledgment of the
assignment or sublease.
(b) In addition to Landlord's right to consent to any
subtenant or assignee, Landlord shall have the option, in its sole
discretion, in the event of any proposed subletting or assignment,
to terminate this Lease, or in the case of a proposed subletting of
less than the entire Premises, to recapture the portion of the
Premises to be sublet, as of the date the subletting or assignment
is to be effective. The option shall be exercised by Landlord's
giving Tenant written notice thereof within thirty (30) days
following Landlord's receipt of Tenant's written notice as required
13
above. If this Lease shall be terminated with respect to the entire
Premises, the Term shall end on the date stated in Tenant's notice
as the effective date of the sublease or assignment as if that date
had been originally fixed in this lease for the expiration of the
Term. If Landlord recaptures only a portion of the Premises, the
Annual Fixed Rent and Additional Rent during the unexpired Term
shall abate, proportionately, based on the Annual Fixed Rent and
Additional Rent due as of the date immediately prior to such
recapture and Percentage Rent shall be calculated using the
adjusted Annual Fixed Rent. Tenant shall, at Tenant's own cost and
expense, discharge in full any outstanding commission obligation
with respect to this Lease and any commissions which may be owing
as a result of any proposed assignment or subletting, whether or
not the Premises are rented by Landlord to the proposed tenant or
any other tenant.
(c) Consent by Landlord to any assignment br subletting
shall not include consent on a subsequent assignment or subletting
of the Premises by Tenant or its assignee or sublessee or the
consent to the assignment or transferring of any Lease renewal
option right~, space option rights or other special privileges
granted to Tenant hereunder (and such options, rights or privileges
shall terminate upon such assignment or subletting), unless
Landlord specifically grants in writing such options, rights or
privileges to assignee or subtenant. Any sale assignment, mortgage,
transfer of this Lease or subletting which does not comply with the
provisions of this Section shall be void.
(d) Notwithstanding Landlord's consent, in the event
that Tenant sells, sublets, assigns, or transfers this Lease and at
any time receives periodic rent and/or other consideration which
exceeds that which Tenant would at that time be obligated to pay to
Landlord, Tenant shall pay to Landlord 100% of the gross increase
in such rent as such rent is received by Tenant and 100% of any
other consideration received by Tenant from such subtenant or such
assignee.
(e) Should Landlord consent to an assignment or sublease
of this Lease, Tenant, its proposed assignee or subtenant and
Landlord shall execute an agreement prepared by or acceptable to
Landlord wherein the proposed assignee or subtenant agrees to be
bound by the terms and conditions of this Lease, and Tenant will
pay to Landlord on demand a sum equal to all of Landlord's costs,
including reasonable attorneys' fees, incurred in connection with
such assignment, sublease or transfer.
REPAIR AFTER CASUALTY
Section 18. (a) (i) Tenant shall immediately give written notice
to Landlord of any damages caused to the Premises by fire or other
casualty. If the Premises shall be destroyed or so injured, due to
any cause, as to be unfit, in whole or in part, for occupancy, and
such destruction or.injury could reasonably be repaired within nine
(9) months from the receipt of insurance proceeds covering such
destruction or injury, then Tenant shall not be entitled to
surrender possession of the Premises, nor, except as hereinafter
provided, shall Tenant's liability to pay rent under this Lease
cease without the mutual consent of the parties hereto. In the case
of any such destruction or injury, Landlord shall repair all
structural portions of the Premises with all reasonable speed and
shall complete such repairs within nine (9) months from the receipt
of such insurance proceeds. Notwithstanding the foregoing, Landlord
shall not be required to expend any amount in excess of the net
insurance proceeds for such repairs. Unless such damage is the
result of the negligence or willful misconduct of Tenant or its
agents, employees or invitees, if during such period Tenant shall
be deprived of the use of all or any portion of the Premises, a
proportionate adjustment in the Annual Fixed Rent and Additional
Rent shall be made corresponding to the time during which, and the
portion of the Premises of which, Tenant shall be so deprived and
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Percentage Rent shall be calculated using the adjusted Annual Fixed
Rent. Tenant shall, within sixty (60) days after completion of
Landlord's work, complete all work to the Premises (without any
allowance from Landlord) necessary to restore the Premises to their
condition on the date Tenant opened for business to the public.
(ii) If such destruction or injury to the Premises cannot
reasonably be repaired within nine (9) months from the receipt of
insurance proceeds covering such destruction or injury, or if the
net insurance proceeds available for such repairs are not
sufficient in Landlord's reasonable determination, Landlord shall
notify Tenant within ninety (90) days after the occurrence of such
destruction or injury whether or not Landlord will repair or
rebuild. If Landlord elects not to repair or rebuild, this Lease
shall be terminated. If Landlord shall elect to repair or rebuild,
Landlord shall notify Tenant of the time within which such repairs
or reconstruction will be completed, and Tenant sh~ll have the
option, within thirty (30) days after the receipt of such notice,
to elect by written notice to Landlord to either terminate this
Lease and any further liability hereunder, or to extend the Term by
a period of time equivalent to the time from the occurrence of such
destruction or injury until the Premises are restored to their
former condition. In the event Tenant elects to extend the Term,
Landlord shall restore the structural portions of the Premises to
their former condition within the time specified in said notice,
Tenant shall complete the work required of Tenant pursuant to
paragraph (i) above within sixty (60) days after completion of
Landlord's work, and Tenant shall not be liable to pay the Annual
Fixed Rent and Additional Rent for the period from the occurrence
of such destruction or injury until the structural portions of the
Premises are so restored by Landlord and Percentage Rent shall be
calculated using the adjusted Annual Fixed Rent.
(b) In addition to all rights to cancel or terminate
this Lease given to the parties in Section 18(a) hereof, (aa) if
fifty percent (50%) or more of the gross leasable area of the
Shopping Center is destroyed or damaged, regardless of whether or
not the Premises shall be affected by such damage or destruction,
Landlord shall have the right to cancel and terminate this Lease as
of the date of such damage or destruction by giving notice thereof
to Tenant within ninety (90) days after the date of such damage or
destruction and (bb) if the Premises are destroyed or damaged
during the last two (2) years of the Term to the extent of fifty
percent (50%) or more of the total square feet of floor area of the
Premises, then either Landlord or Tenant shall have the right to
cancel and terminate this Lease as of the date of such damage or
destruction by giving notice thereof within thirty (30) days after
the date of said damage or destruction. However, if subsection (aa)
above does not apply and Tenant shall, within thirty (30) days
following receipt of Landlord's notice of cancellation pursuant to
(bb) above, give Landlord notice of its intention to renew the
Lease for any additional option periods then available to it under
the terms of this Lease, then the notice of Landlord to terminate
the Lease shall be of no force and effect and Section 18(a) (i) or
18(a) (ii) hereof, as the case may be, shall apply. If no additional
option periods are then available to Tenant, this Lease shall
terminate on the date recited in such notice from Landlord.
(c) Notwithstanding anything to the contrary contained
in Sections 18(a) (i), 18(a) (ii), and 18(b) hereof, Landlord may
cancel this Lease with no further liability to Tenant whatsoever in
the event that following any damage, destruction, or injury to the
Premises or the Building, Landlord's mortgagee elects to require
Landlord to make advance payments upon or for any indebtedness
secured by a mortgage on the Shopping Center or any portion
thereof.
(d) In the event of any insurance claim against any of
Landlord's insurance policies, Landlord shall have the right to
recover from Tenant Tenant's Proportionate Share of the amount of
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any deductible or other loss not reimbursed to Landlord by proceeds
of insurance.
CONDEMNATION
Section 19. (a) In the event the entire Premises shall be taken
by condemnation or right of eminent domain, this Lease shall
terminate as of the day possession shall be taken by the taking
authority and Landlord and Tenant shall be released from any
further liability hereunder. In the event only a portion of the
Premises shall be taken by condemnation or right of eminent domain
and the portion so taken renders the balance unsuitable for the
purpose of this Lease, either Landlord or Tenant shall be entitled
to terminate this Lease, such termination to become effective as of
the day possession of the Premises shall be taken, provided notice
of such termination is given within thirty (30) days after the date
of notice of such taking. If, ii1 such case, this ~ease is not
terminated, Landlord agrees to restore the Premises with Seasonable
speed to an architectural unit as nearly like its condition prior
to such taking as shall be practicable. If during and/or after the
work of restoration, Tenant shall be deprived of the use of all or
any portion of the Premises, a proportionate adjustment in the
Annual Fixed Rent and Additional Rent shall be made corresponding
to the time during which and the portion of the Premises of which
Tenant is so deprived and Percentage Rent shall be calculated using
the adjusted Annual Fixed Rent in the formula specified in Section
~ hereof.
(b) Ail damages awarded in connection with the taking of
the Premises, whether allowed as compensation for diminution in
value to the leasehold, to the reversion and fee of the Premises,
to Tenant's leasehold improvements or otherwise, shall belong to
Landlord. Notwithstanding the foregoing, Tenant shall be entitled
to make a separate claim to the condemning authority for damage to
merchandise and fixtures, removal and reinstallation costs, and
moving expenses.
(c) NotWithstanding anything to the contrary contained
in Sections 19(a) and 19(b) hereof, Landlord may cancel this Lease
with no further liability to Tenant whatsoever in the event that
(a) fifty percent (50%) or more of the gross leasable area of the
Shopping Center is taken by condemnation or right of eminent
domain, or (b) following any taking of the Premises or the Building
by condemnation or right of eminent domain, Landlord's mortgagee
elects to require Landlord to make advance payments upon or for any
indebtedness secured by a mortgage on the Shopping Center or any
portion thereof.
LANDLORD'S REMEDIES UPON DEFAULT
Section 20. (a) If, at any time after the Commencement Date:
(i) Tenant shall be in default in the payment of rent
or other sums of money required to be paid by Tenant, or in the
performance of any of the covenants, terms, conditions, provisions,
rules and regulations of this Lease, and Tenant shall fail to
remedy such default within ten (10) days of the date when due in
the event the default is as to payment of any sums of money, or,
except as provided in subsection (ii) below, within twenty (20)
days after receipt of written notice thereof if the default relates
to matters other than the payment of money; or
(ii) Landlord shall have an audit made for any year in
accordance with Section 5(b) above and the Gross Sales shown by
Tenant's statement of Gross Sales for such year shall be found to
be understated by more than three percent (3%); or
(iii) Tenant becomes insolvent or makes an assignment
for the benefit of creditors, or if any guarantor of Tenant shall
become insolvent or make an assignment for the benefit of
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creditors, or if a receiver shall be appointed, or if proceedings
under the Bankruptcy Code shall be instituted by or against Tenant
or any guarantor of this Lease and the same shall not be dismissed
by the Court within ninety (90) days after being filed, or if any
event shall happen which, aside from this provision, would cause
any assignment or devolution of Tenant's interest or occupancy
hereunder by operation of law; then if any of the circumstances
described in (i), (ii) or (iii) above should occur, Landlord may,
in addition to all other remedies given to Landlord in law or in
equity, by written notice to Tenant, terminate this Lease or
without terminating this Lease reenter the Premises by summary
proceedings or otherwise and, in any event, dispossess the Tenant,
it being the understanding and agreement of the parties that under
no circumstances is this Lease to be an asset for Tenant's
creditors by operation of law or otherwise. In the event of such
reentry Landlord may, but need not, relet the Premises or any part
thereof for such rent and upon such terms as Landlord% in its sole
discretion, shall determine (including the right to relet the
Premises for a greater or lesser term than that remaining under
this Lease, the right to relet the Premises as a part of a larger
area, and the right to change the character or use made of the
Premises). If Landlord decides to relet the Premises or a duty to
relet is imposed upon Landlord by law, Landlord and Tenant agree
that Landlord shall only be required to use the same efforts
Landlord then uses to lease other properties Landlord owns or
manages (or if the Premises is then managed for Landlord, then
Landlord will instruct such manager to use the same efforts such
manager then uses to lease other space or properties which it owns
or manages); provided, however, that Landlord (or its manager)
shall not be required to give any preference or priority to the
showing or leasing of the Premises over any other space that
Landlord (or its manager) may be leasing or have available and may
place a suitable prospective tenant in any such available space
regardless of when such alternative space becomes available;
provided, further, that Landlord shall not be required to observe
any instruction given by Tenant about such reletting or accept any
tenant offered by Tenant unless such offered tenant has a
creditworthiness acceptable to Landlord, leases the entire
Premises, agrees to use the Premises in a manner consistent with
this Lease and leases the Premises at the same rent, for no more
than the Term and on the same other terms and conditions as in this
Lease without the expenditure by Landlord for tenant improvements
or broker's commissions. In any such case, Landlord may, but shall
not be required to, make repairs, alterations and additions in or
to the Premises and redecorate the same to the extent Landlord
deems necessary or desirable, and Tenant shall, upon demand, pay
the cost thereof, together with Landlord's expenses of reletting,
including, without limitation, any broker's commission incurred by
Landlord. In the event of a reletting, Landlord may apply the rent
therefrom first to the payment of Landlord's expenses, including
attorneys' fees incurred by reason of Tenant's default and the
expense of reletting (including, without limitation, repairs,
renovation or alteration of the Premises) and then to the amount of
rent and all other sums due from Tenant hereunder, Tenant remaining
liable for any deficiency. Any and all deficiencies shall be
payable by Tenant monthly on the date herein provided for the
payment of Monthly Installments of Fixed Rent. In determining the
deficiencies and rent which would be payable by Tenant hereunder
subsequent to default, the annual rent for each Lease Year of the
unexpired portion of the Term shall be equal to the average Annual
Fixed Rent and Percentage Rent paid by Tenant from the commencement
of the Term to the time of default, or during the preceding three
(3) full calendar years, whichever is shorter.
(b) No termination of this Lease or any taking or
recovery of possession of the Premises shall deprive Landlord of
any of its remedies or rights of action against Tenant, and Tenant
shall remain liable for all past or future rent, including all
Additional Rent, taxes, insurance premiums, and other charges and
rent payable by Tenant under this Lease, during the Term. In no
17
event shall the bringing of any action for rent or other default be
construed as a waiver of the right to obtain possession of the
Premises.
(c) If suit shall be brought for recovery of possession
of the Premises, for the recovery of rent, or for any other amount
due under the terms and provisions of this Lease, or because of the
breach of any other covenant herein contained on the part of
Tenant, and a breach shall be established, Tenant shall pay to
Landlord all expenses incurred therefor, including reasonable
attorneys' fees.
(d) WHEN THIS LEASE AND ITS TERM SHALL HAVE BEEN
TERMINATED ON ACCOUNT OF ANY DEFAULT HEREUNDER AND ALSO WHEN THE
TERM HEREBY CREATED 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 TO THEREIN CONFESS JUDGMENT FOR THE
RECOVERY BY LANDLORD OF POSSESSION OF THE DEMISED PREMISES TOGETHER
WITH COSTS OF SUIT AND REASONABLE ATTORNEYS FEES OF NOT LESS THAN
ONE THOUSAND DOLLARS, FOR WHICH THIS LEASE SHALL BE SUFFICIENT
WARRANT. THEREUPON, IF LANDLORD SO DESIRES, AN APPROPRIATE WRIT OF
POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR
PROCEEDING WHATSOEVER, PROVIDED THAT IF FOR ANY REASON AFTER SUCH
ACTION SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED THAT
POSSESSION OF THE DEMISED PREMISES SHOULD REMAIN IN OR BE RESTORED
TO TENkNT, LANDLORD SHALL }{AVE THE RIGHT FOR THE SAME DEFAULT AND
UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF
THIS LEASE OR OF 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 DEMISED
PREMISES ~ TO CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF
THE DEMISED PREMISES AS HEREINBEFORE PROVIDED. NOTWITHSTANDING
ANYTHING CONTAINED IN THIS LEASE TO THE CONTHARY, THE RIGHT OF
LANDLORD TO INITIATE AN AMICABLE ACTION OF EJECTMENT AS SPECIFIED
ABOVE SHALL NOT PRECLUDE OR LIMIT LANDLORD'S RIGHT TO INITIATE AN
AMICABLE ACTION FOR RENT.
IN THE EVENT OF DEFAULT HEREUNDER AND ALSO WHEN THE TERM HEREBY
CREATED 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
AGAINST TENANT A/~D ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT
AND TO THEREIN CONFESS JUDGMENT FOR DAMAGES FOR AMOUNTS DUE
HEREUNDER TOGETHER WITH COSTS OF SUIT kND ATTORNEYS FEES OF FIVE
PERCENT OF THE AMOUNT CLAIMED, FOR WHICH THIS LEASE SHALL BE
SUFFICIENT WARRANT. THEREUPON, IF LANDLORD SO DESIRES, AN
APPROPRIATE WRIT OF EXECUTION MAY ISSUE FORTHWITH, WITHOUT ANY
PRIOR WRIT OR PROCEEDING WHATSOEVER, PROVIDED THAT IF FOR ANY
REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED LANDLORD SHALL
HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT
OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE OR OF TENANT'S
RIGHTS AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER
ACTION OR ACTIONS AS HEREINBEFORE SET FORTH, AND TO CONFESS
JUDGMENT AS HEREINBEFORE PROVIDED. NOTWITHSTANDING ANYTHING
CONTAINED IN THIS LEASE TO THE CONTRARY, THE RIGHT OF LANDLORD TO
INITIATE AN ACTION AS SPECIFIED ABOVE SHALL NOT PRECLUDE OR LIMIT
LANDLORD'S RIGHT TO INITIATE ANY OTHER ACTION.
(e) In any amicable action of ejectment or for rent and
other sums, Landlord shall first cause to be filed in such action
an affidavit made by Landlord or someone acting for Landlord,
setting forth the facts necessary to authorize the entry of
judgment 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 warrant of attorney, any rule of court, custom or
18
practice to the contrary notwithstanding.
(f) Tenant expressly waives:
(i) The right to delay execution on any real estate
that may be levied upon to collect any amount which may
become due under the terms and conditions of this Lease and
any right to have the same appraised. Tenant authorizes the
Prothonotary or Clerk to enter a writ of execution or other
process upon Tenant's voluntary waiver and further agrees
that said real estate may be sold on a writ of execution or
other process.
(ii) Ail rights under the Pennsylvania Landlord and
Tenant Act of 1951 and all supplements and amendments
thereto.
(iii) The right to three (3) months and fifteen (15)
or thirty (30) days' notice required under certain
circumstances by the Pennsylvania Landlord and Tenant Act of
1951, Tenant hereby agreeing that the respective notice
periods provided for in this Lease shall be sufficient in
either or any such case.
(g) The parties hereto shall, and they hereby do,
waive trial by jury in any action, proceeding, or counterclaim
brought by either of the parties against the other on any matters
whatsoever arising out of, or in any way connected with, this
Lease, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Premises, and/or any claim of injury or damage
arising out of the Premises, the Building, or the Shopping Center.
(h) Ail rights and remedies provided herein or
otherwise existing at law or in equity are cumulative, and the
exercise of one or more rights or remedies by either party shall
not preclude or waive its right to the exercise of any or all of
the others.
DISCHARGE OF LIENS
Section 21. (a) The Tenant shall not cause, suffer, or permit the
Premises, Building, or the Shopping Center to be encumbered by any
liens of mechanic's, laborers, or materialmen, any security
interests, or any other liens. Tenant shall, whenever and as often
as any such liens are filed against the Premises, the Building, or
the Shopping Center.and are purported to be for labor or material
furnished or to be furnished to Tenant, discharge without demand by
Landlord the same of record within ten (10) days after the date of
filing by payment, bonding or otherwise, as provided by law. Tenant
shall, upon reasonable notice and request in writing from Landlord,
also defend against Landlord, at Tenant's sole cost and expense,
any action, suit, or proceeding which may be brought on or for the
enforcement of any such lien and shall pay any damages and satisfy
and discharge any judgments entered in such action, suit, or
proceeding and shall save harmless Landlord from any liability,
claim, or damages resulting therefrom. In default of Tenant
procuring the discharge of any such lien, Landlord may, without
further notice, procure the discharge thereof by bonding or payment
or otherwise, and all costs and expenses which Landlord may incur
in obtaining such discharge shall be paid by Tenant as Additional
Rent within ten (10) days of any demand therefor.
(b) Nothing in this Lease, nor any approval by Landlord
of any of Tenant's alterations or contractors, shall be deemed or
construed in any way as constituting consent by Landlord for the
making of any alterations or additions by Tenant, or constituting
a request by Landlord, expressed or implied, to any contractor,
subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for the use or benefit of
Landlord.
19
LIABILITY OF LANDLORD
Section 22. If Landlord shall fail to perform any covenant, term,
or condition of this Lease, and if Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only
out of the proceeds of sale received upon execution of such
judgment and levy thereon against the right, title, and interest of
Landlord in the Shopping Center as the same may then be encumbered
and neither Landlord nor any of its partners shall be liable for
any deficiency. It is understood that in no event shall Tenant have
any right to levy execution against any property of Landlord other
than its interest in the Shopping Center. Such right of execution
shall be subordinate and subject to any mortgage or other
encumbrance upon the Shopping Center.
RIGHTS OF LANDLORD
Section 23. (a) Landlord shall have the right, but not the duty,
at all reasonable times, by itself or through its duly authorized
agents, to go upon and inspect all or any part of the Premises and,
at Landlord's option, to make repairs, alterations, and additions
to the Premises, the Building, or any part thereof, or to show the
Premises or the Building to lenders or to prospective purchasers or
tenants.
(b) If Tenant shall fail to fulfill any of its
obligations hereunder, Landlord shall have the right to fulfill
such obligation and any amounts so paid by Landlord are agreed and
declared to be "Additional Rent" due and payable to Landlord from
Tenant with the next installment of Monthly Installment of Fixed
Rent due thereafter under this Lease. Any such amounts which shall
be paid by Landlord on behalf of Tenant shall bear interest from
the date so paid by Landlord at the rate of eighteen percent (18%)
per annum or at the prime rate of interest then being charged by
Chase Manhattan Bank N.A., a national banking association,
whichever is higher provided that in no event shall such rate to be
charged Tenant exceed the rate otherwise permitted by law.
(c) Ail rights of Landlord hereunder shall be deemed to
accrue to the benefit of Landlord's mortgagee, if any.
SUBORDINATION TO MORTGAGE
Section 24. (a) Tenant understands, acknowledges and agrees that
this Lease is and shall be subordinate to any mortgage, ground
lease or other lien or restriction of record now existing or
hereafter placed on or affecting the Premises, the Building, or the
Shopping Center, or any part thereof, and to any renewals,
refinancing or extensions thereof and to all advances made or
hereafter to be made upon the security thereof. This subordination
provision shall be self--operative and no further instrument of
subordination shall be required by any mortgagee or lender.
However, Landlord is hereby irrevocably vested with full power and
authority to subordinate this Lease to any mortgage or other lien
now existing or hereafter placed upon the Premises, the Building,
or the Shopping Center as a whole. Further, Tenant agrees, upon the
demand or request of any party in interest, to execute promptly
such further instruments or certificates as may be necessary to
carry out the intent of this Section.
(b) Notwithstanding the provisions of Section 24(a)
hereof, any mortgagee may at any time subordinate the lien of its
mortgage to the operation and effect of this Lease without
obtaining Tenant's consent thereto, by giving the Tenant written
notice thereof, in which event this Lease shall be deemed to be
senior to such mortgage without regard to their respective dates of
execution, delivery, and/or recordation among the land records of
the county in which the Shopping Center is located, and thereafter
such mortgagee shall have the same rights as to this Lease as it
would have had, were this Lease executed and delivered before the
20
execution of such mortgage.
(c) Tenant shall, within ten (10) days from request by
Landlord, execute and deliver to such persons as Landlord shall
specify a statement in recordable form certifying that this Lease
is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as so
modified), stating the dates to which rent and other charges
payable under this Lease have been paid, stating that Landlord is
not in default hereunder (or, if Tenant alleges a default, stating
the nature of such alleged default) and further stating such other
matters as Landlord or its mortgagee(s) or proposed purchaser(s)
shall reasonably require.
(d) In the event any proceedings are brought for
foreclosure or in the event of the exercise of the power of sale
under any mortgage or deed of trust, Tenant shall attorn to the
purchaser in any such foreclosure or sale and recognize such
purchaser as landlord under this Lease.
NO WAIVER BY LANDLORD
Section 25. No waiver of any of the terms, covenants, provisions,
conditions, rules, and regulations imposed by this Lease, and no
waiver of any legal or equitable relief or remedy, shall be implied
by the failure of Landlord to assert any rights, declare any
forfeiture, or for any~ other reason. No waiver of any of said
terms, provisions, covenants, conditions, rules, and regulations
shall be valid unless it shall be in writing signed by Landlord. No
waiver by Landlord or forgiveness of performance by Landlord in
respect to one or more tenants of the Building shall constitute a
waiver or forgiveness of performance in respect to Tenant.
VACATION OF PREMISES
Section 26. Tenant shall deliver and surrender to Landlord
possession of the Premises (including all of Tenant's permanent
work upon and to the Premises, all replacements thereof, and all
fixtures permanently attached to the Premises during the Term)
immediately upon the expiration of the Term or the termination of
this Lease in any other way in as good condition and repair as the
same were on the Commencement Date (loss by any insured casualty
and ordinary wear and tear only excepted) and deliver the keys at
the office of Landlord or Landlord's agent; provided, however, that
upon Landlord's request made at least thirty (30) days prior to the
end of the Term, or the date Tenant is otherwise required to vacate
the Premises, Tenant shall remove all fixtures and equipment
affixed to the Premises by Tenant, and restore the Premises to
their condition on the Commencement Date (loss by any insured
casualty and ordinary wear and tear only excepted), at Tenant's
sole expense. Such removal shall be performed prior to the earlier
of the end of the Term or the date Tenant is required to vacate the
Premises.
MEMORANDUM OF LEASE
Section 27. Upon request by Landlord, Tenant hereby agrees to
execute for recordation a memorandum of this Lease.
RENT DEMAND
Section 28. Every demand for rent wherever and whenever made shall
have the same effect as if made at the time it falls due and at the
place of payment. After the service of any notice or commencement
of any suit, or final judgment therein, Landlord may receive and
collect any rent due, and such collection or receipt shall neither
operate as a waiver of nor affect such notice, suit, or judgment.
NOTICES
21
Section 2~. Any notices, requests, or consents required to be
given by or on behalf of Landlord or Tenant shall be in writing and
shall be sent overnight courier or by registered or certified
United States mail, return receipt requested, postage prepaid,
addressed to the parties hereto at the respective addresses set
forth on the Reference Page, or at such other address as may be
specified from time to time, in writing. Such notice shall be
deemed given when it is deposited in an official United States Post
Office, postage prepaid. Copies of all notices to Landlord shall be
sent to:
Lavipour & Company, LLC
444 Park Avenue South
Suite 302
New York, NY 10016
APPLICABLE LAW AND CONSTRUCTION
Section 30. The laws of the Commonwealth of Pennsylvania shall
govern the validity, performance, interpretation, and enforcement
of this Lease. The invalidity or unenforceability of any provision
of this Lease shall not affect or iq~pair any other provision. All
negotiations, considerations, representations, and understandings
between the parties are incorporated herein. This Lease may be
modified or altered only by agreement in writing between the
parties. Tenant shall have no right to quit the Premises or cancel
or rescind this Lease except as expressly granted herein. This
Lease has been negotiated by Landlord and Tenant and this Lease,
together with all of the terms and provisions hereof, shall not be
deemed to have been prepared by either Landlord or Tenant, but by
both equally. If any provision of this Lease is held to be invalid
or unenforceable, the validity and enforceability of the remainder
of this Lease shall not be affected thereby.
FORCE MAJEURE
Section 31. In the event that either party hereto shall be
delayed, hindered in, or prevented from performing any act required
hereunder by reason of strikes, lockouts, inability to procure
materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war, or any other reason of a
like nature not the fault of the party delayed in performing such
act, then performance of such act shall be excused for the period
of the delay and the period allowed for the performance of such act
shall be extended for a period equivalent to the period of such
delay. Notwithstanding anything contained herein to the contrary,
Tenant shall not be excused from the payment of rent or other sums
of money which may become due under the terms of this Lease.
LANDLORD'S LIEN
Section 32. (a) Tenant hereby grants to Landlord a lien and
security interest on all property of Tenant now or hereafter placed
in or upon the Premises, and snch property shall be and remain
subject to such lien and security interest of Landlord for payment
of all rent and other sums agreed to be paid by Tenant herein.
Landlord's lien, however, shall not be superior to a lien from a
lending institution, supplier or leasing company, if such lending
institution, supplier or leasing company has a perfected security
interest in the equipment, furniture or other tangible personal
property which originated in a transaction whereby Tenant acquired
same.
(b) The provisions of this Section relating to such lien
and security interest shall constitute a security agreement under
and subject to the Uniform Commercial Code of the state wherein the
Shopping Center is located, so that Landlord shall have and may
enforce a security, interest on all property of Tenant now or
hereafter placed in or on the Premises, in addition to and
22
cumulative of Landlord's liens and rights provided by law or by the
other terms and provisions of this Lease.
(c) Tenant agrees to execute as debtor such financing
statement or statements and such other documents as Landlord may
now or hereafter request in order to protect or further perfect
Landlord's security interest. Notwithstanding the above, Landlord
shall neither sell nor withhold from Tenant Tenant's business
records.
QUIET ENJOYMENT
Section 33. Landlord hereby covenants and agrees that if Tenant
shall perform all of the covenants and agreements herein stipulated
to be performed by Tenant, Tenant shall at all times during the
continuance hereof have peaceable and quiet enjoyment and
possession of the Premises without any manner of let%or hindrance
from Landlord or any person or persons claiming by, through, or
under Landlord, subject, always, to the terms and provisions of
this Lease.
HOLDING OVER
Section 34. If at the expiration of the Term or any renewal
thereof Tenant continues to occupy the Premises, such holding over
shall not constitute a renewal of this Lease, but Tenant shall be
a tenant from month to month upon all of the terms, provisions,
covenants, and agreements hereof, except that Landlord may, in its
sole discretion, increase the amount of the Annual Fixed Rent
thereafter due hereunder to an amount equal to 200% of the Annual
Fixed Rent being paid immediately prior to such expirations.
BROKERS
Section 35. Tenant represents and warrants that it has not dealt
with any real estate broker other than the real estate broker(s)
listed on the Reference Pa~e in connection with this Lease.
Landlord shall pay any commission or fee due such broker(s) as a
result of this Lease. Tenant a~rees to indemnify Landlord against,
and hold it harmless from, all liabilities arising from any claim
resultin~ from its having dealt with any other broker in connection
with~his Lease. -~
CAPTIONS
Section 36. Ail paragraph titles or captions contained in this
Lease are for convenience only and shall not be deemed part of the
context of this Lease.
VARIATION IN PRONOUNS
Section 3~. Ail of the terms and words used in this Lease,
regardless of the number and gender in which they are used, shall
be deemed and construed to include any other number or gender, as
the context or sense of this Lease or any paragraph or clause
herein may require, as if such terms and words had been fully and
properly written in the appropriate number and gender.
LENDERS' APPROVAL
Section 38. Notwithstanding anything contained herein to the
contrary, Landlord's'obligations and Tenant's rights under this
Lease are conditioned upon its approval by Landlord's construction
lender and permanent lender. In the event Landlord is unable to
obtain such approvals, Landlord shall notify Tenant of the basis
therefor and Tenant shall have thirty (30) days in which to agree
to any changes requested by such lender in order to make the within
Lease acceptable to it. In the event Tenant fails to agree to any
such changes within said thirty (30) day period, Landlord may
terminate this Lease within thirty (30) days thereafter. In such
23
event, both parties shall be released from any further liability
under this Lease.
SECURITY DEPOSIT
Section 39. The Security Deposit shall be held by Landlord without
liability for interest and as security for the performance by
Tenant of Tenant's covenants and obligations under this Lease, it
being expressly understood that the Security Deposit shall not be
considered an advance payment of rental or a measure of Tenant's
damages in case of default by Tenant. The Security Deposit shall be
paid to Landlord upon execution of this Lease. Landlord may, in its
sole discretion, from time to time without prejudice to any other
remedy, use the Security Deposit to the extent necessary to make
good any default under this Lease or to satisfy any other covenant
or obligation of Tenant hereunder; provided, however, that no
portion of the Security Deposit shall be applied towards payment of
the last month's rent hereunder without the prior written consent
of the Landlord's mortgagee. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount
so applied in order to restore the Security Deposit to its original
amount. If Tenant is not in default at the termination of this
Lease, the balance of the Security Deposit remaining after any such
application shall be returned by Landlord to Tenant after deduction
therefrom any unpaid obligation of the Tenant to the Landlord as
may arise under this Lease, including, without limitation, the
obligation to restore the Premises pursuant to Section 26 hereof.
If Landlord transfers its interest in the Premises during the term
of this Lease, Landlord may assign the Security Deposit to the
transferee and thereafter Landlord shall have no further liability
to Tenant for the return of such Security Deposit, and Tenant shall
look solely to the trans£eree for return of such Security Deposit.
NO INCOME PARTICIPATION
Section. R0. Neither Tenant nor any other person having a~ interest
in the possession, use, occupancy or utilization of the Premises
shall enter into any lease, sublease, license, concession or other
agreement for use, occupancy or utilization of the Premises which
provides for rental or other payment for such use, occupancy or
utilization bas.ed_i~..whole or in part on the net income or profits
derived by any person from the Premises or portion thereof leased,
used, occupied or utilized (other than an amount based on a fixed
percentage or percentages of receipts or sales), and that any such
purported lease, sublease, license, concession or other agreement
shall be absolutely void and ineffective as a conveyance of any
right or interest in the possession, use, occupancy or utilization
of any part of the mortgaged Premises.
F~ZARDOUS SUBSTANCES
Section 41. In addition to, and not in limitation of any other
provision of this Lease, Tenant agrees not to generate, store, use
treat or dispose of, nor to allow, suffer or permit the generation,
storage, use, treatment or disposal of, any "hazardous waste" or
"hazardous substance" (as those terms are defined in the Resource
Conversation and Recovery Act, 42 U.S.C Sections 6901 et seq., as
amended ("RCRA") or the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Sections 9601 et seq.,
as amended ("CERCLA"), and any rules and regulations now or
hereafter promulgated under either of such acts) or any pollutant
or other contaminant, on, in from or about the Premises or the
Shopping Center, which hazardous material is prohibited or
controlled by any federal, state or local law, ordinance, rule or
regulation now or hereafter in effect. Tenant shall and hereby does
indemnify and hold Landlord harmless from and against any and all
loss, damages, expenses, fees, claims, costs and liabilities
(including, but not limited to, attorneys' fees and costs of
litigation) arising out of or in any manner related to the
"release" or "threatened release" of, and for any clean-up
24
responsibility imposed upon Landlord under any federal, state or
local law, ordinance, rule or regulation now or hereafter in
effect, with respect to any "hazardous waste" or "hazardous
substance" (as those terms are defined in RCRA and CERCLA, and any
rules and regulations now or hereafter promulgated thereunder), or
any pollutant, or other contaminant on, in, from or about the
Premises or the Shopping Center or any portion or portions thereof,
which release or threatened release arises out of or is in any
manner related to Tenant's use or occupancy of the Premises.
Notwithstanding anything contained herein to the contrary, Landlord
shall remain responsible for, and shall indemnify and save Tenant
harmless from and against any and all liability, damages, losses,
claims, suits and other costs (including reasonable attorney's
fees) arising out of, or connected with the presence on, in, or
under the Building of Premises, of any asbestos, PCBs, or any other
hazardous substance or hazardous waste existing prior to the
commencement of this Lease, or resulting from any cauBe other than
Tenant's occupancy in, or use of, the Premises.
BINDING EFFECT
Section 42. The provisions of this Lease shall bind and inure to
the benefit of Landlord and Tenant, and their respective
successors, legal representatives and permitted assigns, subject to
the provisions of Section 17 hereinabove. Tenant shall be bound by
any succeeding party of Landlord for all the terms, covenants and
conditions hereof, provided that such succeeding party complies
with its obligations as Landlord hereunder.
IN WITNESS WHEREOF, intending to be legally bound hereby,
the parties hereto have set their hands this day of August,
1998, as to Landlord, and this day of August, 1998, as to
Tenant.
~tne~s- -
LANDLORD:
H/~pD~~ER, INC.
TENANT:
Q.J.J., Inc.
ItS:
25
STATE OF NEW YORK )
~ IN~S) SS:
COUNTY OF ~F~': YGP~X)
BEFORE ME, a notary public in and for said county and
state, personally appeared David F. Lavipour, Vice President of
Hampden Center, Inc., who acknowledged that, with due authority, he
executed the foregoing instrument on behalf of said Hampden Center,
Inc. and that the same is the free act and deed of said Hampden
Center, Inc. and his free act and deed individually and as sucll
Vice President.
IN TESTIMONY WHEREOF,
official seal this
I have hereunto set my hand and
day of A~m~Tr~t, 1998. ~
Notary
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF ,_
On this, the ~n~ day of A~t, 1998, before me, the
undersigned officer, personally appeared Q~-~! ~//~ ' ,
who acknowledged himse].f to be the'~Q~'~&;~'~ .r, 6f Q.J.J., Inc.,
a corporation, and that he as such being authorized
to do so, executed the foregoin~ instrument for the purposes
therein contained by signing the name of the corporation by himself
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
Notary Public
Notarial Seal
Catharine M. Milson, Notary Public
Whitehall Twp. Lehigh County
My Commiss on Expires Jan. 25, 1999
Member, Pennsylvania ~ of Notaries
26
EXHIBIT "A"
ALL that certain lot or tract of land situate in Hampden Township,
Cumberland County, Pennsylvania more fully bounded and described as
follows, to wit:
BEGINNING at an iron pin (found) on the southern right-of-way line
of the Carlisle Pike (S.R. 1010, 50 R.O.W.) and the line of lands
N/F of William C. Rowland, Jr. thence proceeding in a generally
southern direction South 05 degrees, 45 minutes, 59 seconds East
1173.92 feet to a point on the northern right-of-way line of S.R.
0011 (120 R.O.W.); thence along said right-of-way line North 83
degrees, 59 minutes, 24 seconds West 546.43 to an iron pin (found);
thence by same on a curve to the right having a radius of 3079.36
feet and an arc length of 1237.06 feet to a point on the western
right-of-way line of Sporting Hill Road (S.R. 1013, 40 R.O.W.);
thence along said right-of-way line North 05 degrees~ 30 minutes,
45 seconds West 221.48 feet to a point; thence by lands N/F of
David R. Miller North 83 degrees, 04 minutes, 02 seconds East
121.68 feet to an iron pin (found); thence by lands N/F of
Associates and Universal Restaurants, Inc. North 86 degrees, 33
minutes, 17 seconds East 441.20 feet to an iron pin (found); thence
by lands of Universal Restaurants, Inc. North 03 degrees, 14
minutes, 44 seconds West 415.88 feet to a point on the southern
right-of-way line of the Carlisle Pike (S.R. 1010, 50 R.O.W.);
thence by said right-of-way line North 86 degrees, 36 minutes, 37
seconds East 1082.77 feet to an iron pin (found) being the point
and place of BEGINNING.
Containing 31.963 Acres.
A-1
EXHIBIT "B" - DESCRIPTION OF PREMISES
The boundaries and location of tile Premises, utilities, paved
inBress, egress, etc., as shown on this site plan sets forth the
9eneral layout of the shopping center and shall not be a warranty
or representation or agreement on the part of Landlord that said
shopping center will be exactly as indicated on this site plan.
tt JS)cm
TIIH ONl.l.~JOdS
I I I I I I I Illl[[l [Hllll] [[1
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EXHIBIT "C"
LANDLORD'S WORK
PREMISES WILL BE DELIVERED IN
AN "AS IS" CONDITION.
C-1
EXHIBIT "D"
TENANT ' S WORK
WORK BY TENANT
A. GENEP~AL REQUIREMENTS:
APPROVALS: The Tenant shall submit to the
Landlord and obtain full approval of all plans,
specifications and work including all roof
openings, signs, etc. Any damage done by Tenant
shall be paid for by the Tenant.
Landlord must approve any and all materials,
equipment and fixtures which become a permanent
part of the structure.
Tenant shall furnish Landlord with. a list of all
contractors Tenant intends to use to work in his
premises. Landlord reserves the right to approve or.
disapprove of any and all of Tenant's contractors.
All contractors engaged by Tenant as permitted by
Landlord shall be bondable, license contractors,
possessing good labor relations, capable of
performing quality workmanship and working in
harmony with Landlord's and other tenants'
contractors on the job. All work shall be
coordinated with the general project work.
The design of all work and installation undertaken
by Tenant shall be approved by the Landlord. All
work undertaken shall be at the Tenant's expense
and shall not damage or weaken the structural
strength of the building or any part thereof, and
shall be done in a first-class workmanlike manner
and in accord with all applicable Federal, State,
County and local municipal statutes, ordinances,
regulations, laws and codes. All tenant
construction shall be non-combustible, and no
combustible materials of any nature will be
permitted above the finished ceiling.
PLANS: The Tenant shall deliver to the Landlord
within twenty (20) days after the execution of this
Lease, its plans and specifications for work within
the leased space.
PERMITS, INSPECTIONS, FEES, ETC.: Ail work
installed by Tenant shall be coordinated with and
completed so as not to interfere with Landlord's
construction schedule nor any other tenant's
activities. Tenant shall secure and pay for any
necessary building permits, inspections and fees.
Prior to start of work, Tenant shall forward a copy
of all required permits to the Landlord.
STOREFRONTS: Should Tenant desire an
individualized storefront other than Landlord's
standard, the additional cost of designing and
constructing same shall be done at the Tenant's
expense. The following criteria shall apply for
same.
Materials, designs and color selections shall
be subject to the prior approval of Landlord
and Landlord's architect.
b. No portion of the storefront may protrude
beyond the front line of the leased premises
D-1
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nor encroach in any manner into the covered
sidewalk.
c. No unfinished wall area will be permitted on
the storefront.
d. Storefront material shall be selected for
durability and freedom from maintenance.
Temporary storefront: If a Tenant's work is not
completed within the time required by this
Lease (or, in any event, is not completed on
the grand opening date), Landlord may, at
Tenant's expense, install a temporary
storefront or barricade.
INSURA/qCES: Tenant shall secure, %pay for and
maintain, or cause its contractor(s) to secure, pay
for and maintain, as the case may be, during the
continuance of construction and fixturing work
within the leased premises, Workman Compensation
Employers Liability Insurance; Comprehensive
General Liability Insurance (including Contractors
Protective Liability); Owner's Protective Liability
Insurance, insuring Tenant against any and all
liability to third parties for damage due to bodily
injury and property damage liability; and Tenant's
Builder's Risk Insurance; and statutory Automobile
Insurance.
Ail of the foregoing insurance policies shall be
with an insurance company approved by Landlord and
the insurance limits contained therein shall be
acceptable to Landlord. In addition, the aforesaid
Tenant's insurance policies shall name Landlord,
its Lender, its Architect and its General
Contractor as an additional insured and Tenant's
contractor shall deliver necessary evidence of all
of the foregoing policies to Landlord.
NO WORK SHALL BEGIN UNTIL ALL INSUR3tNCE
CERTIFICATES ARE IN POSSESSION OF LA/~DLORD.
Each tenant shall be responsible for the cost of
delivery and arranging all receipt and unloading of
all materials and equipment pertaining to his work.
CLEANING OF PREMISES: The Tenant shall, at all
times, keep the premises free from accumulations of
waste materials and/or rubbish caused by his
employees, workers, or contractors. Tenant shall
maintain the premises in a clean and orderly
condition during construction and merchandising.
Tenant shall promptly remove all unused
construction materials, equipment, shipping
containers, packaging, debris, and flammable waste
from the Shopping Center. Tenant shall contain all
construction materials, equipment, fixtures,
merchandise, shipping containers and debris within
the premises. The common exterior areas of the
Shopping Center shall be clear of Tenant's
equipment, merchandise, fixtures, refuse and debris
at all times. Trash storage within the premises
shall be confined to covered metal contains. Tenant
is responsible for the removal of all trash and
debris from Tenant's premises.
o
CERTIFICATE OF OCCUPANCY: The Tenant shall
secure a Certificate of Occupancy from the
D-2
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jurisdictional authorities in sufficient time to
allow Tenant to open the premises in accordance
with the opening requirements of this Lease. A copy
of the Certificate of Occupancy shall be forwarded
to the Landlord.
VIOLATIONS: In the event the Tenant is notified
of any violations of codes, ordinance regulations,
requirements or guidelines either by the
jurisdictional authorities or by the Landlord,
Tenant shall, at its expense, correct such
violations within seven (7) calendar days after
such notification.
ROOF OPENINGS: Any roof opening required by the
Tenant will be performed by Landlord's roofing
contractor at the Tenant's expense. Such openings
will include supporting structures, angles, curbs,
flashings, ducts, vents and grilles. Landlord may
refuse to approve any openings which, in Landlord's
judgement, exceed the capability of the structural
system.
LIENS: Tenant shall not permit any mechanic's
liens to attach to the leased premises or the
Shopping Center development in which the premises
are located on account of any labor or materials
furnished or supplied to the demised premises in
connection with Tenant's Work. In the event that
such a lien is attached, Tenant shall forthwith
cause the same to be discharged or in lieu thereof
furnish a bond for the benefit of Landlord issued
by a duly licensed surety company authorized to do
business in the state the project is located, which
by its terms indemnifies and holds the Landlord
harmless from the effects of such lien. In
addition, Tenant shall provide Landlord with final
waivers of lien, materialman certificates,
affidavits and sworn statements from all tenant's
contractors and suppliers within thirty days of
completion of work.
10o LANDLORD'S RIGHT OF ACCESS TO PREMISES: Landlord,
Landlord's agent, an independent contractor, or an
authorized utility company, as the case may be,
shall have the right, subject to Landlord's written
approval, to run utility lines, conduits or duct
work, where necessary or desirable, through ceiling
space, column space or other parts of the demised
premises and to repair, alter, replace or remove
the same, all in a manner which does not interfere
unnecessarily with Tenant's use thereof.
GENERAL WORK:
The Tenant will furnish and install the following items
of work at its sole cost and expense:
Interior partitions within the leased areas, except
for the toilet room walls.
2 o
Floor coverings.
Interior finishing of wall surfaces including
priming, painting, staining and wall coverings.
4 o
Display window backs, display window floor, display
window ceilings, and display window lighting
D-3
fixtures and power for the same.
Install ceiling tiles.
PLUMBING WORK: Any plumbing facilities in excess
of that provided by the Landlord, such as increase
in size of service, drinking fountains, additional
toilet facilities, janitor's sink, hose bibbs, lab
sinks, special fixturing and outlets, will be
provided, installed and connected at Tenant's
expense. Tenant will also pay for any increases in
water and sewer capital charges or any other
related charges imposed by the municipality or
Landlord above the municipality's or Landlord's
standard charge for a retail store due to the
Tenant's use of the premises, i.e. restaurants,
beauty salon, etc. Tenant will provide fire
extinguishers as required by building code and
insurance underwriters.
HEATING, VENTILATING AND AIR CONDITIONING: Added
capacities to roof top HVAC units, if necessary,
shall be furnished and installed by the Tenant.
SPRINKLER WORK: Cost of additional pipe and heads
required as a result of interior store partitions,
mezzanine areas, unusual use of premises or tenant
fixtures will be charged to Tenant.
ELECTRICAL WORK: Tenant shall furnish, install and
pay for all electrical work other than items
furnished by Landlord, including but not limited
to:
a. Increased size of incoming electrical service
and panel.
b. Telephone and communication system.
c. Burglar alarms and/or warning systems.
d. Emergency generator.
e. Tenant's store signs and controlling time
clocks.
f. High voltage outlets.
Floor outlets.
h. Music systems.
i. Additional exit signs and emergency lighting
units necessitated by Tenant's fixtures and
interior partitions.
10. MISCELLANEOUS WORK:
so
Ail trade fixtures, cabinets, shelving,
counters, appliances, furniture, furnishings,
etc., signs (interior and exterior) and other
personal property shall be new and of first
quality and shall be furnished and installed by
Tenant.
Toilet paper holders, soap dispensers, mirrors,
shelves, towel dispensers, etc. shall be
provided by the Tenant.
C o
Tenant at his expense shall sound insulate, to
extent required by the nature of its business,
the demising walls so as not to permit sound to
emanate outside the premises.
11. SIGNS:
The Tenant shall furnish, install and
D-4
connect identification signs at locations provided
at canopy fascia at Tenant's expense.
Canopy fascia sign design, lighting and sign copy
color shall be subject to Landlord's approval.
Canopy signs shall be in conformance with the
detailed sign criteria, as prepared by Landlord's
Architect.
Prior to fabrication, sign plans and specifications
must be submitted for Landlord's approval.
D-5
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EXHIBIT "E"
RULES AND REGULATIONS
Landlord reserves the right to change from time to time the
format of the signs or lettering on the signs, and to require
replacement of any signs previously approved pursuant to
Section 16 to conform to Landlord's new standard sign criteria
established pursuant to any remodeling of the Shopping Center.
Tenant shall not, without the prior written consent of
Landlord (i) paint, decorate or make any changes to the store
front of the Premises; or (ii) install any exterior lighting,
awning or protrusions, signs, advertising matter, decoration
or painting visible from the exterior of the Premises or any
coverings on exterior windows and doors, excepting only
dignified displays of customary type in store windows. If
Landlord objects in writing to any of the foregoing, Tenant
shall immediately discontinue such use.
Tenant shall not (i) conduct or permit any fire, bankruptcy or
auction sale (whether real or fictitious) unless directed by
order of a court of competent jurisdiction, or conduct or
permit any legitimate or fictitious "Going Out of Business"
sale nor represent or advertise that it regularly or
customarily sells merchandise at "manufacturer's",
"distributor's", or "wholesale", "warehouse", or similar
prices or other than at "offprice" or at "retail" prices; (ii)
use, or permit to be used, the malls or sidewalks adjacent to
such Premises, or any other area outside the Premises for
solicitation or for the sale or display of any merchandise or
for any other business, occupation or undertaking, or for
outdoor public meetings, circus or other entertainment (except
for promotional activities in cooperation with the management
of the Shopping Center or an association of merchants within
the Shopping Center); (iii) use or permit to be used any sound
broadcasting or amplifying device which can be heard outside
of the Premises or any flickering lights; (iv) operate or
cause to be operated any video games or transportation
devices; or (v) use or permit to be used any portion of the
Premises for any unlawful purpose or use or permit the use of
any portion of the Premises as regular living quarters,
sleeping apartments or lodging rooms or for the conduct of any
manufacturing business.
Tenant shall at all times keep the Premises at a temperature
sufficiently high to prevent freezing of water pipes and
fixtures. Tenant shall not, nor shall Tenant at any time,
permit any occupant of the Premises to: (i) use, operate or
maintain the Premises in such manner that any rates for any
insurance carried by Landlord, or the occupant of any premises
within the Shopping Center, shall thereby be increased; or
(ii) commit waste, perform any acts or carry on any practices
which may injure the Shopping Center or be a nuisance or
menace to other tenants in the Shopping Center.
Tenant shall not obstruct any sidewalks, passages, exits,
entrances, truck ways, loading docks, package pick-up
stations, pedestrian sidewalk and ramps, first aid and comfort
stations, or stairways of the Shopping Center. No tenant and
no employee or invitee of any tenant shall go upon the roof of
the Shopping Center without notifying the Landlord.
Landlord will furnish Tenant free of charge with two keys to
each door lock in the Premises. Landlord may make a reasonable
charge for any additional keys. Tenant, upon the termination
of its tenancy, shall deliver to Landlord the keys of all
doors which have been furnished to Tenant, and in the event of
loss of any keys so furnished, shall pay Landlord therefor.
E-1
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10.
11.
12.
13.
14.
If Tenant requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain and comply with
Landlord's instructions in their installation.
Tenant shall not place a load upon any floor which exceeds the
designed load per square foot or the load permitted by law.
Landlord shall have the right to prescribe the weight, size
and position of all equipment, materials, furniture or other
property brought into the Premises. Heavy objects shall stand
on such platforms as determined by Landlord to be necessary to
properly distribute the weight. Business machines and
mechanical equipment belonging to Tenant which cause noise or
vibration that may be transmitted to the structure of Tenant's
store or to any other space to such a degree as to be
objectionable to Landlord or to any tenants shall be placed
and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other similar devices. The persons employed to
move equipment in or out of Tenant's store must be acceptable
to Landlord. Landlord will not be responsible for loss of, or
damage to, any equipment or other property from any cause, and
all damage done to the Shopping Center by maintaining or
moving such equipment or other property shall be repaired at
the expense of Tenant.
The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that
for which they were constructed. No foreign substance of any
kind whatsoever shall be thrown therein, and the expense of
any breakage, stoppage or damage resulting from the violation
of this rule shall be borne by the tenant who, or whose
employees or invitees, shall have caused it.
Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of
Tenant's store. Tenant shall not interfere with radio or
television broadcasting or reception from or in the Shopping
Center or elsewhere.
Except as approved by Landlord, Tenant shall not damage
partitions, woodwork or plaster or in any way deface the
Premises. Tenant shall not cut or bore holes for wires. Tenant
shall not affix any floor covering to the floor of the
Premises in any manner except as approved by Landlord. Tenant
shall repair any damage resulting from noncompliance with this
rule.
Tenant shall not install, maintain or operate upon the
Premises or in any Common Areas under the exclusive control of
Tenant any vending machine or video game without Landlord's
prior written consent.
Tenant shall.store all its trash and garbage in containers
within its Premises and/or in the portion of the Common Areas
designated by Landlord. Tenant shall not place in any trash
box or receptacle any material which cannot be disposed of in
the ordinary and customary manner of trash and garbage
disposal. Ail garbage and refuse disposal shall be made in
accordance with directions issued from time to time by
Landlord.
No cooking shall be done or permitted by Tenant on the
Premises without.Landlord's prior written consent, except for
brewing coffee and similar beverages and use of a single
microwave oven by employees only and in any event will not
permit odors to emanate from the Premises provided that such
use is in accordance with all applicable federal, state and
city laws, codes, ordinances, rules and regulations.
E-2
15.
Tenant shall not use in any space any hand trucks except those
equipped with rubber tires and side guards or such other
material-handling equipment as Landlord may approve. Tenant
shall not bring any other vehicles of any kind into Tenant's
store.
16.
Employees of Landlord shall not perform any work or do
anything outside of their regular duties unless under special
instructions from Landlord.
17.
Ail loading of goods shall be done only at such times, in the
areas, and through the entrances, designated for such purposes
by Landlord. The delivery or shipping of merchandise, supplies
and fixtures to and from the leased premises shall be subject
to such rules and regulations as in the judgment of the
Landlord, are necessary for the proper operation of the leased
premises or the Shopping Center~ ~
18.
Tenant and Tenant's employees shall park their cars only in
such portion of the parking area designated for those purposes
by the Landlord. Tenant shall furnish Landlord with state
automobile license numbers assigned to Tenant's employees
within five (5) days after taking possession of the premises
and shall thereafter notify the Landlord of any changes within
five (5) days after changes occur. In the event that the
Tenant or its employees fail to park their cars in designated
parking areas as aforesaid, then the landlord, at its option,
shall charge the Tenant Ten Dollars ($10.00) per day or
partial day per car parked in any area other than that
designated.
19.
Landlord may waive any one or more of these Rules and
Regulations for the benefit of any particular tenant or
tenants, but no such waiver by Landlord shall be construed as
a waiver of such Rules and Regulations in favor of any other
tenant or tenants, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against any or all of
the tenants of the Shopping Center.
20.
These Rules and Regulations are in addition to, and shall not
be construed to in any way modify or amend, in whole or in
part, the terms, covenants, agreements and conditions of any
lease of premises in the Shopping Center.
21.
Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients,
customers, invitees and guests.
22.
Tenant shall use, at Tenant's cost, such pest extermination
contractor as Landlord may direct and at such intervals as
Landlord may require.
23.
Trailers or trucks shall not be permitted to remain parked
overnight in any area of the Shopping Center, whether loaded,
unloaded or partially loaded. No parking shall be permitted of
any trailer, truck or other vehicle in any area of the
Shopping Center at any time for purposes of advertising or
promotion without Landlord's written permission.
Tenant agrees to comply with all additional and supplemental rules
and regulations upon notice of same from the Landlord.
E-3
EXHIBIT "F"
TENANT SIGN CRITERIA
GENERAL
This exhibit is meant to outline the tenant sign criteria for the
Retail Shops at Hampden Centre Shopping Center, Mechanicsburg,
Pennsylvania. It is drafted as a guide to provide a consistent
graphic technique and may be amended or altered only with the
written consent of Landlord. Tenants will be required to submit
detailed and dimensioned drawings indicating graphic content,
colors, script, construction and fastening details and electrical
requirements to Landlord for review and approval prior to
fabrication and installation of any signs.
Bo
The advertising content of all signs shall be limited to
letters designating the store name, or the type of store.
Tenants will not be permitted to indicate specific merchandise
sold (i.e. brand names, etc.), specific services rendered
(i.e., "free gift wrapping" etc.), or indicate any advertising
slogans (i.e., "The We Care People", etc.).
Crests and corporate shield designs may be permitted, but,
must be submitted to the Landlord for approval for
compatibility of design intent with the sign criteria.
The location, character, design, color and layout of all signs
shall be subject to the approval of the landlord. Proper
consideration will be given to signs used by occupants for the
same or similar retail operations elsewhere.
No sign shall be placed in final position without written
approval of the Landlord.
Ail signs are to be fabricated and installed by a licensed
sign installer and shall be in compliance with all local,
state and national codes governing sign installation and shall
bear a U.L. label.
Go
Tenant may install one identity sign on its service door with
maximum 2" high letters. Identity sign shall list place of
business as indicated on the tenant sign located on the sign
band and shall be "Helvetica Medium" all capital letters.
If any or all of the sign standard limitations as described
herein are found to be invalid under local sign and/or zoning
ordinances, regulations or law, to the extent that such
limitations and restrictions, or any other ordinances,
regulations or law, is invalid as described, then the Landlord
may modify said limitations or restrictions to comply with
such local ordinance, regulation or law. In no event shall the
invalidity of any one of the limitations or restrictions be
deemed to invalidate the sign standard scheme as outlined.
SIGN REQUIREMENTS:
ao
Ail signage shall not exceed 60% of storefront length (see
attached Elevation Drawing - Appendix A) .
B. Maximum sign height is 36".
C. No sign shall exceed maximum brightness of 100 foot lamberts.
No fluorescent tubing, incandescent lamps, ballast boxes,
electrical transformers, crossovers, conduit or sign cabinets
shall be permitted.
No flashing, moving, flickering, or blinking illumination
shall be permitted.
F-1
Go
Ho
No animation, moving lights, or floodlight illumination
shall be permitted.
The name and/or stamp of the sign contractor or sign company,
or both, shall not be exposed to view.
Signs, symbols, and/or trademarks must have a preliminary
approval by Landlord before shop drawings are executed.
One sign, or other graphic treatment, is allowed per
storefront elevation. Stores with two storefront elevations
may have a second sign with the written approval of the
Landlord. Such second signs should maintain the same sign
message, graphic technique and design intent as the first
sign.
Signing is limited to trading name or logo only%
All signing must occur on the sign band unless otherwise
approved.
L. Color of raceway must match sign band color.
PROHIBITED SIGNS.
A.
D.
E.
F.
G.
H.
I.
J
K
L
M
N
0
Paper signs, cardboard and hanging signs and/or stickers
utilized as signs.
Signs of a temporary character or purpose, irrespective of the
composition of the sign or material used therefor.
Moving signs.
Pictures or paintings.
Box type signs or signs with formed plastic letters.
Advertising devices, slogans, merchandise or several listings.
Moving or rotating objects.
Back illuminated signs, "halo" effect letters.
Moving or flashing lights.
Painted on or luminous letters.
Cloth, wood, paper or cardboard.
Free standing signs or sandwich boards.
Noise making devices.
Boxes, cabinets, frames, transparent or translucent panels.
Rooftop signs or banners, except for those beneath canopy, as
approved by the Landlord.
Names of designer, manufacturer or installer.
Any other signs, graphics or components which the Landlord
determines to distract from the overall center theme.
Individual dimensional wood, metal or plastic letters.
Formed plastic or injected molded plastic signs.
Projecting signs and banners.
Exposed neon tubing.
F-2
ILLUMINATED SIGNS:
no
Ail sign band identification signs to be internally channelled
letters with opaque metal sides and translucent acrylic face.
Letters shall be no more than 6" in depth and not less than 6"
high, with concealed ballasts. Letters must be installed on a
raceway. The color of the raceway must match the sign
band/facade.
Bo
Exposed neon tubes forming letters or logos shall be used only
in decorative fashion and shall be allowed at the discretion
of the Landlord on an individual basis.
SIGN SPECIFICATIONS:
These specifications are meant to serve as performance standards
for tenant signage at the Shopping Center.
Wall mounted, internally illuminated siqn: Custom fabricated
aluminum plastic face, interior neon illumination, and individual
letters.
Depth of letters: Overall sign depth is 6"
Plastic face: As selected from stock colors connected to letters by
continuous aluminum retainer. Retainer ring size to be 3/8" x 1/2".
Letter stroke: Minimum 3"
TvDoqraphy: Ail standard letter styles are permitted per
attached sheet (see "Letter Styles" - Appendix "B").
Colo~: Permitted colors for illuminated signs are as follows:
1. Lettering to be standard colors as approved by Landlord.
2. Aluminum frames to match lettering color as approved by
Landlord.
Illumination: By two (2) neon tubes with standard ratings of 118
volts.
F-3
EXHIBIT "G"
LEASE GUARANTY
In consideration of the making of the lease agreement by and
between HAMPDEN CENTER, INC., as Landlord, and Q.J.J., Inc., as
Tenant, prepared August 14, 1998, for the premises commonly
described as Space D-9 Hampden Centre (hereinafter referred to as
the "Lease") and for the purpose of inducing Landlord to enter into
and make the Lease, the undersigned hereby unconditionally
guarantees the full and prompt payment of rent and all other sums
required to be paid by Tenant under the Lease ("Guaranteed
Payments") and the full and faithful performance of all terms,
conditions, covenants, obligations and agreements contained in the
Lease on the Tenant's part to be performed ("Guaranteed
Obligations") and the undersigned further promises to pay all of
Landlord's costs and expenses (including reasonable attorney's
fees) incurred in endeavoring to collect the Guaranteed Payments or
to enforce the Guaranteed Obligations or incurred in enforcing this
guaranty as well as all damages which Landlord may suffer in
consequence of any default or breach under the Lease or this
guaranty.
1. Landlord may at any time and from time to time, without
notice to the undersigned, take any or all of the following actions
without affecting or impairing the liability and obligations of the
undersigned on this guaranty:
bo
grant an extension or extensions of time of
payment of any Guaranteed Payment or time for
performance of any Guaranteed Obligation;
grant an indulgence or indulgences in any
Guaranteed Payment or in the performance of any
Guaranteed Obligation;
modify or amend the Lease or any term thereof, or
any obligation of Tenant arising thereunder;
consent to any assignme~t or assignments,
sublease or subleases and successive assignments
or sublessees or a change or different use of the
leased premises;
consent to an extension or extensions of the term
of the Lease;
accept other guarantors; and/or
release any person primarily or secondarily
liable.
The liability of the undersigned under this guaranty
shall in no way be affected or impaired by any failure or
delay in enforcing any Guaranteed Payment or Guaranteed
Obligation or this guaranty or any security therefor or
in exercising any right or power in respect thereto, or
by any compromise, waiver, settlement, change,
subordination, modification or disposition of any
Guaranteed Payment or Guaranteed Obligation or of any
security therefor. This is a guaranty of payment and
performance and not of collection. The liability of the
undersigned' under this guaranty shall be direct and
immediate and not conditional or contingent upon the
pursuit of any remedies against Tenant or any other party
or security.
2. The undersigned waives all diligence in collection or in
protection of any security, presentment, protest, demand, notice of
dishonor or default, notice of acceptance of this guaranty, notice
of any extensions granted or other action taken in reliance hereon
G-1
and all demands and notices of any kind in connection with this
guaranty or any Guaranteed Payment or Guaranteed Obligation.
3. The undersigned hereby acknowledges full and complete
notice and knowledge of all of the terms, conditions, covenants,
obligations and agreements of the Lease.
4. The payment by the undersigned of any amount pursuant to
this guaranty shall not in any way entitle the undersigned to any
right, title or interest (whether by subrogation or otherwise) of
the Tenant under the Lease or to any security being held for any
Guaranteed Payment or Guaranteed Obligation.
5. If Tenant fails to make such payments as provided above,
or if Tenant is otherwise in default under the Lease on said
termination date, this guaranty shall not terminate and shall be
continuing, absolute and unconditional and remain in ~ull force and
effect until all Guaranteed Payments are made, all Guaranteed
Obligations are performed, and all obligations of the undersigned
under this guaranty are fulfilled.
6. This guaranty shall also bind the successors and assigns
of the undersigned and inure to the benefit of Lessor, its
successors and assigns. This guaranty shall be construed according
to the laws of the Commonwealth of Pennsylvania, in which state it
shall be performed by the undersigned.
7. If this guaranty is executed by more than one entity, all
singular nouns and verbs herein relating to the undersigned shall
include the plural number and the obligation of the several
guarantors shall be joint and several.
8. The Landlord and the undersigned intend and believe that
each provision of this guaranty comports with all applicable law.
However, if any provision of this guaranty is found by a court to
be invalid for any reason, the parties intend that the remainder of
this guaranty shall continue in full force and effect and the
invalid provisions shall be construed as if they were not contained
herein.
IN WITNESS WHEREOF, intending to be legally boun~ h$~r~e~y, the
undersigned has executed this guaranty this ~ day of ~['1998.
Witn~§s
State of ~ n~9-<,/~lV~a\~-
County of A~h~%
On this, the ~ day o~ A~t~ 1998, before me the
undersigned officer, -personally appeared Qe~n~4 ~[~ , known to
me, (or satisfactorily proven) to be th~ per~ons whose name is
subscribed to the within instrument, and acknowledge that he/she
executed the same for the purpose therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
I 1
Notarial Seal
Catharine M. Milson, Notary Public
Whitehall Twp., Lehigh County
My Commission Expires Jan. 25, 1999
Notary Public
G-2
VERIFICATION
I, David F. Lavipour, Vice President for Hampden Center,
Inc., being authorized to do so, verify that the statements in
the foregoing document are true and correct to the best of my
knowledge, information and belief.
I understand that any false statements herein are made
subject to the penalties of 18 Pa.C.S.A. Section 4904, relating
to unsworn falsification to authorities.
Date
ByHAMPDEN: ~,~ CENTER~
Vice President
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
HAMPDEN CENTER, INC, :
:
Plaintiff, : No.: 02-765 Civil
V. ~
JERRY SH1H, : CIVIL ACTION
:
Defendant :
ANSWER AND NEW MATTER
And Now, comes Defendant, Jerry Shih, by and through his attomeys, Eckert Seamans
Cherin & Mellott, LLC, and respectfully files the following Answer:
1. Admitted.
2. Admitted.
3. Denied. To the contrary, Defendant, Jerry Shih, maintains an address at 2000
McArthur Road, Whitehall, PA 18052
4. Denied as stated. The Agreement of Lease ("Lease") attached as Exhibit "A' to
Hampden Center, Inc.'s (''Hampden Center") Complaint filed with this Court is a written
document that speaks for itself and any characterization thereof by Hampden Center is expressly
denied.
5. Denied as stated. The Lease Guarantee ("Guarantee") dated September 2, 1998,
attached to the Lease is a document in writing that speaks for itself, and any characterization
thereof by Hampden Center is expressly denied.
6. Denied as stated. The Guarantee is a document in writing that speaks for itself,
and any characterization thereof by Hampden Center is expressly denied.
{L0249657.1}
7. Denied as stated. The Guarantee is a document in writing that speaks for itself,
and any characterization thereof by Hampden Center is expressly denied.
8. Denied as stated. The Guarantee is a document in writing that speaks for itself,
and any characterization thereof by Hampden Center is expressly denied.
9. Denied as stated. The Guarantee is a document in writing that speaks for itself,
and any characterization thereof by Hampden Center is expressly denied.
10. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
11. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
12. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
13. The allegations of paragraph 13 of this Complaint contain conclusions of law to
which no response is required. To the extent that any response is required, the allegations are
denied generally pursuant to Pa. R. Civ. P. 1029(e).
14. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
15. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
16. Defendant, Jerry Shih, is without knowledge or information sufficient to form a
belief as to the troth of these averments, and therefore they are denied and strict proof is
demanded.
17. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
18. Defendant, Jerry Shih, is without knowledge or information sufficient to form a
belief as to the truth of these averments, and therefore they are denied and strict proof is
demanded.
19.
Defendant, Jerry Shih, is without knowledge or information sufficient to form a
belief as to the truth of these averments, and therefore they are denied and strict proof is
demanded.
20.
Defendant, Jerry Shih, is without knowledge or information sufficient to form a
belief as to the truth of these averments, and therefore they are denied and strict proof is
demanded.
21. Defendant, Jerry Shih, is without knowledge or information sufficient to form a
belief as to the truth of these averments, and therefore they are denied and strict proof is
demanded.
WHEREFORE, Defendant Jerry Shih, demands judgment in his favor and against
Plaintiff, Hampden Center, Inc.
2.
3.
4.
_NEW MATTER
Hampden Center has failed to state upon which a relief may be granted.
Hampden Center's claims are or may be barred by the Doctrine of Laches.
Hampden Center's claims are barred by the Doctrine of Unclean Hands.
Hampden Center's are or may be barred by the statute of limitations.
5. Hampden Center's interpretation of the Lease and Guarantee upon which it bases
its claim for relief is without legal support, and as a matter of law it is unconscionable,
unreasonably overhroad, and ambiguous with respect to pertinent terms related to the leasing of
the property.
6. Hampden Center's lease terms have been voided by its counsel, Stephen C.
Nudel, through correspondence written to Defendant, Jerry Shih, on December 28, 2000,
wherein he indicated that the lease term expires in August, 2001. A tree and correct copy of the
December 28, 2001 correspondence is attached hereto as Exhibit "A".
7. Based upon the December 28, 2000 correspondence from Mr. Nudel, the
Defendant, Jerry Shih, formulated a business plan and used his best efforts to stay through the
end of the lease term which expired in August, 2001. See Exhibit "A".
8. Defendant, Jerry Shih, has a limited ability to understand English and relied on
Mr. Nudel's representations contained in the December 28, 2000 correspondence and stayed
through the lease term which expired in August, 2001.
9. As a result, Defendant Jerry Shih, was fully compliant with the terms of the lease
as dictated by Hampden center's counsel, Mr. Nude[
10. The Guarantee referred to in Hampden Center's Complaint is neither valid nor
enforceable because due to his limited understanding of English, the Defendant, Jerry Shih, did
not know he had been requested to sign a personal guarantee.
11. Defendant, Jerry Shih, believed the Guarantee was part of the Lease and had he
been advised of the existence of the personal guarantee, he would not have signed said Lease.
12. The reference sheet that lists the lease terms does not specify any requirement of a
lease guarantee. See Lease attached to Hampden Center's Complaint as Exhibit "A".
4
13. The reference sheet to the Lease only lists a security deposit as security for the
14. The reference sheet, by its terms, overrides anything in the Lease itself that
conflicts with the reference sheet.
15. If a personal guarantee were to be part of the security for the Lease, it should have
been listed as a term or part of the security.
WHEREFORE, Defendant, Jerry Shih, respectfully requests that this Honorable Court
enter judgment in his favor and order:
(a) The Complaint be dismissed with prejudice;
(b) That the Defendant be awarded his fees and costs, including
reasonable attorneys' fees and;
(c) Such other and further relief that this Court deems appropriate.
Respectfully submitted,
ECKERT SEAMANS CHERIN & MELLOTT, LLC
Date:
Ron S. Chima, Esquire
Supreme Ct. I.D. #81916
213 Market Street
Eighth Floor
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant, Jerry Shih
5
P.01
Apr-02- 02 09:08
Exhibit A
P.03
L7 .~, ~'~
STEPHEN C. NUDEL
MARK W. ALLSHOUSE
STEPHEN C. NUDEL, PC
(717) 236-5000
VIA OVERNIGHT COURIER
December 28, 2000
Mr. Jerry Shih
Q.J.J., Inc. t/a PC Warehouse
766 Bethlehem Pike
Mont~omeryville, PA 18936
Re:
Hampden Centre
Hampden Center, Inc. to
Q.J.J., Inc. t/a PC Warehouse
Dear Mr. Shih:
This firm represents Hampden Center, Inc., your Landlord
with respect to your Lease at Hampden Centre Shopping Center.
You are in default under the terms of the Lease for failing to
remit $600.00 which is past due and owing. In addition, you have
indicated to my client of your intention to terminate and vacate
the premises by March 1, 2001., which constitutes a breach of the
Lease. You are ob_~li~ated for the'entire term throuqh Au~ust
2001. .--
construed as a waiver of any right
client under law or at equity.
My client intends to enforce all rights and remedies
available under law against you. Nothing in this letter shall be
or remedy available to my
SCN/kb
cc: P.C. Warehouse
Very t rulyffour s,
CERTIFICATE OF SERVICE
I, Ron S. Chima, Esquire, hereby certify that I am this day serving a copy of the
foregoing Answer And New Matter via first-class U.S. Mail upon the person(s) and in the
manner indicated, which service satisfies the requirements of the Pennsylvania Rules of Civil
Procedure.
Stephen C. Nudel, Esquire
Law Offices of Stephen C. Nudel, PC
219 Pine Street
Harrisburg, PA 17101
Ron S. Chima, Esquire
Date: April 2, 2002
{L0249657.1 }
SHERIFF'S RETURN - OUT OF COUNTY
CA~E NO: 2002-00765 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HAMPDEN CENTER INC
VS
SHIH JERRY
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
SHIH JERRY
but was unable to locate Him in his bailiwick. He therefore
deputized the sheriff of MONTGOMERY County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On March 15th , 2002 , this office was in receipt of the
attached return from MONTGOMERY
Sheriff's Costs:
Docketing 18.00
Out of County 9.00
Surcharge 10.00
Dep Montgomery Co 33.00
.00
70.00
03/15/2002
STEPHEN NUDEL
SO answe~rs>~-
~.~ Thomas ~line
Sheriff of Cumberland County
Sworn and subscribed to before me
this ~0 ~ day
~#2~ A.D.
Prothonotary
Return this form to C~nberland County Sheriff's office.
In The (~ourt of Common Pleas of Cumberland County, Pennsylvania
H~,,~den Center, Inc. VS.
JezTy Shih .
SERVE: Je~zy Shih - No. 02 765 civil
NOW, FebruarY 26, 2002 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Montgomery County to execute this V~rit, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
Now, ,64
upon
by hmding to ~ ~o~
~d made ~o~ to ~ ~
,20 ~2., at ?/a~'-o'clock ~t' M. served the
the contents thereof.
copy of the original
Sworn and subscribed before
me this [ ~. ~day/o~f ~Od~, 20[~
\
So answers, /3 o c 2~ 2.4ffl/C~
Sheriffof /"FT~m-/-2--~ County, PA
COSTS ~ /,~ ~
~EAGE
~FIDA~T
HAMPDEN CENTER, INC.,
Plaintiff
V.
JERRY SHIH,
Defendant,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-765 CIVIL
CIVIL ACTION
NOTICE
YOU HAVE BEEN SUED IN COURT. If yOU wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are
served, by entering a written appearance 9ersonally or by
attorney and filing in writing with the Court your defenses or
objections to the claims set forth against you. You are warned
that if you fail to do so the case may proceed without you and a
Judgment may be entered against you by the Court without
Complaint or for any other claim or relief requested by the
Plaintiff. You may lose money or 9roperty or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Lawyer Referral Service
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
1-800-990-9108
HAMPDEN CENTER, INC.,
Plaintiff
V.
JERRY SHIH,
Defendant,
LE HAN DEMANDADO A USTED EN LA CORTE.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:
:
NO. 02-765 CIVIL
:
:
: CIVIL ACTION
:
:
NOTICIA
SI USTED QUI~RE
DEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGUIENTES,
USTED TIENE VIENTE (20) DIAS DE PLAZO AL PARTIR DE LA FECHA DE LA
DEMANDA Y LA NOTIFICACION. USTED DEBE PRESENTAR UNA APARIENCIA
ESCRITA 0 EN PERSONA 0 POR ABOGADO Y ARCHIVAR EN LA CORTE EN
FORMA ESCRITA SUS DEFENSAS 0 SUS OBJECIONES A LAS DEMANDAS EN
CONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE DEFIENDE,
LA CORTE TOMARA MEDIDAS Y PUEDE ENTRAR UNA ORDEN CONTRA USTED SIN
PREVIO AVISO 0 NOTIFICACION Y POR CUALQUIER QUEJA 0 ALIVIO QUE ES
PEDIDO EN LA PETICION DE DEMANDA. USTED PUEDE PERDER DINERO 0
SUS PROPIEDADES 00TROS DERECHOS IMPORTANTES PARA USTED.
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION
SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
Cumberland County Lawyer Referral Service
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
1-800-990-9108
HAMPDEN CENTER, INC.,
Plaintiff
V.
JERRY SHIH,
Defendant,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-765 CIVIL
CIVIL ACTION
AMENDED COMPLAINT
AND NOW, comes Plaintiff, Hampden Center, Inc., by and
through its attorneys, Law Offices Stephen C. Nudel, PC, and
respectfully files the following Amended Complaint:
1. Plaintiff, Hampden Center, Inc., is a Pennsylvania
corporation with a business address of 444 Park Avenue South,
Suite 302, New York, New York 10016 ("Hampden Center")
2. Plaintiff is the owner of real property known as
Hampden Centre Shopping Center, Mechanicsburg, Hampden Township,
Cumberland County, Pennsylvania ("Shopping Center")
3. Defendant, Jerry Shih, is an adult individual having an
address of 766 Bethlehem Pike, Montgomeryville, Pennsylvania
18936.
4. On or about September 1, 1998, Plaintiff, as Landlord,
and Q.J.J., Inc., as Tenant, executed an Agreement of Lease
("Lease") for 2,000 square feet of commercial space known as
Space D-9 Hampden Centre Shopping Center, 4910 Carlisle Pike,
Mechanicsburg, Cumberland County, Pennsylvania 17050
("Premises"). A true and correct copy of the Lease is attached
hereto and made a part hereof as Exhibit "A".
5. Tenant and Defendant operated its business at the
Premises through October 2001.
COUNT I: BREACH OF LEASE
6. Paragraphs 1 through 5 are hereby incorporated by
reference as if set forth at length.
7. Defendant as Guarantor executed a Lease Guaranty dated
September 2, 1998, which is Exhibit G of the Lease ("Guaranty").
8. The Guaranty is an unconditional guaranty for the full
and prompt payment of rent and all other sums required to be paid
by Tenant under the Lease.
9. Under the terms of the Guaranty, the liability of the
Guarantor is direct and ir~ftediate and not conditional or
contingent upon the pursuit of any remedies against Tenant or any
other party or security.
10. Under the terms of the Guaranty, the Guarantor
guarantees the faithful performance of all terms, conditions,
covenants, obligations and agreements contained in the Lease
which are required to be performed by Tenant.
11. The Guaranty further states that the Guarantor promises
to pay all of Landlord's costs and expenses (including reasonable
attorneys fees) incurred in endeavoring to collect amounts due
from the Guarantor or incurred in enforcing the Guaranty as well
as all damages which the Landlord may suffer as a consequence of
any default or breach under the Lease or the Guaranty.
12. The Lease provides for payment of rent ("Rent") and
Tenant's prorata share of co~ton area costs, insurance costs, tax
costs and utility costs (collectively ,,Additional Rent") in the
amount of $2,412.31 per month by Tenant and/or Guarantor.
13. Rent and Additional Rent are to be paid in advance of
the first day of each month.
14. Pursuant to the terms of the Lease, Tenant and
Guarantor are responsible for payment of annual promotion fees of
$600.00 per year.
15. Tenant and Guarantor are in default under the terms of
the Lease.
16. Tenant and Guarantor are in default under the terms and
conditions of the Lease in that they have failed to pay Rent and
Additional Rent for the months of November and December 2001,
when due and owing in the amount of $6,567.10.
17. The Lease provides, inter alia, that all amounts unpaid
by Tenant and/or Guarantor shall bear an interest rate of 18% per
annum, but not in excess of the maximum legal rate.
Defendant currently owes interest in the amount of
18.
$724.02.
19.
The Lease provides that any Rent not paid within
fifteen (15) days of its due date shall be subject to a late
charge in the amount equal to or the greater of $50.00 or sum
equal to 5% of the unpaid amount.
20. Tenant and Guarantor owe late charges in the amount of
$328.36.
21. Tenant and Guarantor owe costs of suit in the amount of
$195.50.
22. Tenant and Guarantor owe reasonable attorneys fees
accrued to date in the amount of $3,000.00.
23. Based upon the foregoing, Defendant is liable to
Plaintiff as follows:
November/December Rent
Additional Rent Past Due
Late Charges
Interest (7 months @ 18%)
Costs
Attorneys Fees
$ 4,824.62
$ 1,742.48
$ 328.36
$ 724.02
$ 195.50
TOTAL: $10,814.98
WHEREFORE, Plaintiff demands Judgment against Defendant and
in favor of Plaintiff in the amount of $10,814.98 plus interest,
costs of suit and attorneys fees.
COUNT II: HOLDOVER TENANCY
24. Paragraphs i through 23 are hereby incorporated by
reference as if set forth at length.
25. Count II is being plead in the alternative to Count I.
26. In the event this Court finds that Defendant's Lease
terminated in August 2001, it is averred that Defendant caused a
holdover tenancy for the months of November and December, 2001.
27. Under the terms of the Lease, as a holdover tenant,
Landlord may, in its sole discretion, increase the amount of
Annual Fixed Rent thereafter due to an amount equal to 200% of
the Annual Fixed Rent being paid immediately prior to such
expirations.
28. Landlord has exercised its discretion to increase the
Annual Fixed Rent from $2,412.31 to $4,824.62 per month pursuant
to the te~ms of the Lease.
29. Based upon the foregoing, Defendant is liable to
Plaintiff as follows:
November/December Rent
Additional Rent Past Due
Late Charges
Interest (7 months @ 18%)
Costs
Attorneys Fees
9,649.24
1,742.48
328.36
1,230.61
195.50
3.000.00
TOTAL: $16,146.19
WHEREFORE, Plaintiff demands Judgment against Defendant and
in favor of Plaintiff in the amount of $16,146.19 plus interest,
costs of suit and attorneys fees.
Date
Respectfully submitted,
LAW OFFICES STEPHEN C. N-u-DEL, PC
Stephen C. Nudel, ~squire
A~torney ID #41703I
M~rk W. Allshouse,~Esquire
Attorney ID #78014
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for Plaintiff
AGREEMENT OF LEASE
LANDLORD:
HAMPDEN CENTER, INC.
TENANT:
Q.J.J., Inc.
Section 1 -
Section 2 -
Section 3 -
Section 4 -
Section 5
Section 6 -
Section 7 -
Section 8
Section 9
Section 10 -
Section 11 -
Section 12
Section 13
Section 14 -
Section 15 -
Section 16 -
Section 17 -
Section 18 -
Section 19 -
Section 20 -
Section 21 -
Section 22
Section 23
Section 24
Section 25
Section 26
Section 27
Section 28~ -
Section 29
Section 30
Section 31
Section 32 -
Section 33 -
Section 34 -
Section 35 -
Section 36 -
Section 37 -
Section 38 -
Section 39 -
Section 40 -
Section 41 -
Section 42 -
Exhibit~
AGREEMENT OF LEASE
LANDLORD:
HAMPDEN CENTER, INC.
TENANT:
Q.J.J., Inc.
AGREEMENT OF LEASE
INDEX
Pa~e No,
Premises ................ 1
Term ................ ~ 1
Fixed Rent .............. , 2
Percentage Rent ............. 3
Gross Sales Defined ........... 4
Additional Rent ............. 6
Common Areas .............. 7
Construction of Premises ........ 8
Use ................... 8
Utilities ................ 9
Rules and Regulations .......... 10
Change of Improvements by Tenant .... 10
Repairs and Maintenance ......... 11
Waiver of Liability by Tenant ...... 12
Inderanification and Insurance ...... 12
Signs .................. 13
Assignment and Subletting ........ 13
Repair After Casualty .......... 14
Condemnation .............. 16
Landlord's Remedies Upon Default .... 16
Discharge of Liens ........... 19
Liability of Landlord .......... 20
Rights of Landlord ........... 20
Subordination to Mortgage ........ 20
No Waiver by Landlord .......... 21
Vacation of Premises .......... 21
Memorandum of Lease ........... 21
Rent Demand ............... 21
Notices ................. 22
Applicable Law and Construction ..... 22
Force Majeure .............. 22
Landlord's Lien ............ ~ 22
Quiet Enjoyment ............. 23
Holding Over .............. 23
Brokers ................. 23
Captions ................ 23
Variation in Pronouns .......... 23
Lenders' Approval ............ 23
Security Deposit ............ 24
No Income Participation ......... 24
Hazardous Substances .......... 24
Binding Effect ............. 25
Legal Description of Shopping Center
Description of Premises
Landlord's Work
Tenant's Work
Rules and Regulations
Signage
Guaranty
Ver.7.09.98
REFERENCE PAGE
prepared August 14, 1998
HAMPDEN CENTRE
LANDLORD:
HAMPDEN CENTER, INC.
LANDLORD'S ADDRESS:
TENANT: ~
TENANT'S ADDRESS:
444 Park Avenue South
Suite 302
New York, NY 10016
Q.J.J., Inc.
Bethlehem Pike
Montgomeryville, PA
TENANT'S TRADE NAME: PC Warehouse
PREMISES:
USE:
LEASE
COMMENCEMENT DATE:
RENT
COMMENCEMENT DATE:
TERMINATION DATE:
18936
2,000 square feet (see Exhibit "B" for
outline of Premises) aka Space D-9
Subject to existing Leases, Tenant may
operate a business for the retail sale of
computers and computer accessories.
.~U~USt 2!, i~9°~ c~[~-~ o~ ~~% 6D~Ck
The earlier of the date Tenant opens for
business or ninety (90) days after
Landlord substantially completes its work.
Three years from the last day of the month
in which the Rent Commencement Date
Occurs.
TERM OF LEASE:
ANNUAL FIXED RENT:
3 years, beginning on the Rent
Commencement Date and ending on the
Termination Date (unless sooner terminated
pursuant to this Lease).
Lease Year 1 ..... $ 24,000.00
Lease Year 2 ..... $ 24,000.00
Lease Year 3 ..... $ 24,000.00
MONTHLY INSTALLMENTS
OF FIXED RENT:
PERCENTAGE RENT:
Lease Year 1 ..... $
Lease Year 2 ..... $
Lease Year 3 ..... $
N/A
2,000.00
2,000.00
2,000.00
INITIAL ANNUAL
PROMOTIONAL FUND COST:
$0.30/SF annually payable at the
beginning of each lease year.
TENANT'S PRORATA SHARE: 1.0% (Subject to a Shopping Center of
228,192 SF)
SECURITY DEPOSIT:
$2,000.00
REAL ESTATE BROKER
DUE COMMISSION:
RENEWAL OPTIONS:
Bennett Williams, Inc.
Provided that Tenant has not defaulted
under the terms hereof, Tenant is granted
one 5-year option to renew this Lease.
ANNUAL OPTION RENT:
Year 1 ....... $ 24,720.00
Year 2 ....... $ 25,461.60
Year 3 ....... $ 26,225.45
Year 4 ....... $ 27,012.21
Year 5 ....... $ 27,822.58
MONTHLY INSTALLMENTS
OF OPTION RENT:
Year 1 ....... $
Year 2 ....... $
Year 3 ....... $
Year 4 ....... $
Year 5 ....... $
2,060.00
2,121.80
2,185.45
2,251.01
2,318.54
LANDLORD WORK:
Landlord shall deliver the premises in
"vanilla shell" condition.
The Reference Page information is incorporated into and made a
part of that certain Lease (the "Lease") made and entered into by
and between HAMPDEN CENTER, INC., as Landlord, and Q.J.J., Inc.,
as Tenant. In the event of any conflict between any Reference
Page information and the Lease, this Reference Page shall
control. The Lease includes Exhibits "A" through "G", all of
which are made a part hereof. Unless otherwise provided herein,
all capitalized terms contained in this Reference Page shall have
the meaning ascribed to them in the Lease.
LANDLORD:
HAMPDEN C~
By:
Title: Vice/P~,~sident
Dated ~ ..... 1998
TENANT:
Q.J.J., Inc.
Dated: 9/1 , i998
iii
LEASE
THIS LEASE made and entered into between HAMPDEN CENTER,
INC., as Landlord and Q.j.j., Inc., as Tenant evidences the
following understandings and agreements. The Reference Page
attached hereto, including all terms defined thereon, is
incorporated as part of this Lease.
WITNESSETH, that for good and valuable consideration,
each to the other in hand paid, the receipt whereof is hereby
acknowledged, the parties agree as follows:
PREMISES
Section 1. (a) Landlord leases to Tenant and Tenant rents from
Landlord the Premises having the frontage and depth indicated on
the Reference Page (all dimensions herein are measured from center
of the wall to center of the wall for all party walls and from the
outside face of all exterior walls and store fronts), located in
the building (the "Building,,) commonly known as Hampden Centre
("Shopping Center"). The Shopping Center is more particularly
described by metes and bounds on Exhibit "A" attached hereto and
made a part hereof by reference.
(b) The Premises are outlined in red on Exhibit "B"
attached hereto and made a part hereof by reference. "Tenant's
Proportionate Share" as used in this Lease shall mean a fraction,
the numerator of which is the gross leasable area of the Premises
and the denominator of which is the gross leasable area of the
Shopping Center. Premises are cross-hatched on Exhibit "B" attached
hereto. Landlord's calculation of Tenant's Proportionate Share is
as indicated on the Reference Page. Gross leasable area of the
Shopping Center means all ground floor area contained in the
Shopping Center designated for tenants' exclusive occupancy.
(c) Landlord expressly reserves (1) the use of the
exterior rear and side walls and roof of the Premises and the
exclusive use of any space between the ceiling of the Premises and
the floor above or the roof of the Building, (ii) the right to
install, maintain, use, repair, and replace the pipes, ducts,
conduits, and wires leading into or running through the Premises
(in locations which will not materially interfere with Tenant's use
thereof), (iii) the right in its sole and absolute discretion to
expand, enlarge, make alterations or additions to, and to build
additional stories on, the Shopping Center and to build other
buildings or improvements on the Common Areas (as hereinafter
defined), and (iv) the right, upon sixty (60) days prior written
notice to Tenant, to transfer and remove Tenant from the Premises
to other available tenant space of equal area and equivalent rent
.in the Shopping Center. (Landlord shall bear the expense of said
transfer or removal as well as the expense of any renovations or
alterations necessary to make the new space conform substantially
in arrangement and layout with the Premises covered by this Lease).
The within reservations in favor of Landlord are in addition to the
rights granted..to Landlord under Section 23 hereof.
TERM
Section 2. (a) The Lease Term shall be as indicated on the
Reference Page. The term "Commencement Date" means the day after
Landlord's work on the Premises, as specifically set forth in
Section 8 hereof, will be completed to the extent reasonably
required for the installation by Tenant of Tenant's fixtures,
furnishings and equipment or if no work is to be performed by
Landlord pursuant to Section 8 hereof, on the date keys are
delivered to Tenant by Landlord. Landlord shall notify Tenant in
writing of the date on which Landlord's work on the Premises has
been or will be completed and of the Commencement Date. The parties
agree to endorse this Lease to identify the day, month and year
that the Commencement Date actually occurs.
(b) If Landlord is required to perform work pursuant to
Section 8 hereof, when the actual Commencement Date is established,
the parties will promptly enter into a Supplement to Lease,
prepared by Landlord, stipulating the Commencement Date and the
Expiration Date of the Term.
(c) The term "Lease Year" as used herein shall begin on
the Commencement Date and end twelve months therefrom.
(d) Landlord hereby grants to Tenant the right and
option to extend the Term of this Lease for the option periods
indicated in the Renewal Option Section of the Reference Page (each
a "Renewal Term"). Tenant shall notify Landlord in writing of its
election to extend this Lease for each Renewal Term not less than
six (6) months nor more than twelve (12) months prior to the
expiration date of the then existing term. Each Renewal Term shall
be upon all of the terms, covenants, and conditions of this Lease
except that the Annual Fixed Rent and Percentage %Rent payable
during such Renewal Term shall be as set forth in i~9~A~[p~ and
4(a) hereof, respectively. Tenant shall have no right to extend or
renew this Lease if it is in default hereunder at the time of
giving its notice of renewal, nor shall any renewal notice be
effective if Tenant is in default hereunder as of the first day of
the extended term which was the subject of such notice.
FIXED RENT
Section 3. (a) Tenant agrees, without notice or demand and
without any deduction or setoff, to pay to Landlord, at Landlord's
Address shown on the Reference Page, or at such other place as
Landlord may designate, as a fixed minimum rent for the Premises
per Lease Year, the Annual Fixed Rent indicated on the Reference
Page for such Lease Year in fixed equal monthly installments during
each Lease Year equal to the Monthly Installments of Fixed Rent
indicated on the Reference Page for such Lease Year, each Monthly
Installment of Fixed Rent to be payable in advance on the first day
of each month during the Term. Tenant agrees to pay to Landlord, if
assessed by the jurisdiction in which the Shopping Center is
located, any sales or excise tax imposed, assessed or levied in
connection with Tenant's payment of the Annual Fixed Rent.
(b) Upon execution of this Lease, Tenant shall deposit
with Landlord (i) the Security Deposit as indicated on tile
Reference Page to be held by Landlord during the Term pursuant to
the provisions of Section 39 hereof; and (ii) the first Monthly
Installment of Fixed Rent, and one month's worth of Additional Rent
(as hereinafter defined). The funds so deposited pursuant to Item
(ii) of this Subparagraph (b) shall be applied to the Monthly
Installment of Fixed Rent and the Additional Rent due for the first
full month of the Term.
(c) Tenant's obligation to pay rent (as defined in
Subparagraph 6(c)) shall begin on the earlier to occur of tile date
(said date is hereinafter referred to as the "Rental Commencement
Date") upon which Tenant shall open for business in the Premises or
the day after the expiration of the "Fixturing Period". The
Fixturing Period shall begin on the Commencement Date and continue
for the number of days specified on the Reference Page. Rent due
for any period which is ].ess than a calendar month, whether prior
to the Rental Commencement Date or after the expiration Date, shall
be prorated on a daily basis and shall be computed on the basis of
Tenant's monthly rental payments (utilizing a thirty (30) day month
for purposes of such computation). Tenant shall pay to Landlord the
rent for each such day (i) concurrently with the first Monthly
Installment of Fixed Rent due hereunder; (ii) upon vacating the
Premises as herein provided; or (iii) upon demand from Landlord, as
the case may be.
(d) In the event Tenant exercises its right to extend
the Term for a Renewal Term, the Annual Fixed Rent payable during
the Renewal Term shall be equal to the amount indicated in the
Renewal Option section of the Reference Page for such Renewal Term
in fixed equal monthly installments equal to the Monthly
Installment of Fixed Rent indicated in the Renewal Option section
of the Reference Page for such Renewal Term each to be payable in
advance on the first day of each month during such Renewal Term.
(e) Tenant recognizes that late payment of any rent or
other sum due hereunder will result in administrative expense to
Landlord, the extent of which additional expense is extremely
difficult and economically impractical to ascertain. Tenant
therefore agrees that if rent or any other sum is due and unpaid
fifteen (15) days after said amount is due, such amount shall be
increased by a late charge in an amount equal to the greater of:
(a) Fifty Dollars ($50.00) or (b) a sum equal to five percent (5%)
of the unpaid amount. The amount of the late charge shall be
reassessed and added to Tenant's obligation for each successive
monthly period until paid. The provisions of this Section shall not
in any way affect Landlord's remedies pursuant to Section 20 of
this Lease.
PERCENTAGE RENT
Section 4. (a) In addition to Annual Fixed Rent, and as a
material inducement for Landlord to lease the Premises to Tenant,
Tenant agrees to pay to Landlord during each Lease Year the
Percentage Rent indicated on the Reference Page for such Lease
Year. During each Renewal Term, Percentage Rent shall be equal to
the Percentage Rent indicated in the Renewal Option section of the
Reference Page for such Renewal Term.
(b) In any Lease Year in which (i) Tenant shall cease
conducting business in the Premises, (ii) the Term is terminated,
or (iii) there shall be an abatement of Annual Fixed Rent, so that
the Lease Year is less than twelve (12) calendar months, Tenant
shall pay to Landlord prorated Percentage Rent equal to the amount
by which the percentage of Tenant s Gross Sales set forth on the
Reference Page for such lesser period exceeds the Annual Fixed Rent
paid during the prior or subsequent Lease Year multiplied by the
number of months in the shortened Lease Year divided by twelve
(12).
(c) On or before the twentieth (20th) day of each
calendar ~nonth during the Term, Tenant shall deliver to Landlord a
complete and accurate statement, signed and certified by Tenant,
showing in detail Gross Sales (as hereinafter defined) for the
previous month and Gross Sales for each prior month during the
current Lease Year.
(d) (i) During the first Lease Year, Percentage Rent
shall be payable in one lump sum no later than thirty (30) days
after tile end of the first Lease Year. (ii) Commencing with the
second Lease Year and continuing throughout the term of this Lease,
Percentage Rent shall be payable on a monthly basis as follows: No
later than thirty (30) days before the first day of each Lease
Year, Landlord shall send Tenant an estimate of annual Percentage
Rent due for said Lease Year based on the amount of Percentage Rent
paid by Tenant in the prior consecutive twelve (12) months. The
estimate shall be adjusted to equal twelve (].2) times the average
monthly Percentage Rent due if the Tenant has not been in
possession of the premises for twelve (12) months. On or before the
first of each month of said Lease Year, Tenant shall pay to
Landlord one-twelfth (1/12) of the estimated annual Percentage ReDt
due for the said Lease Year. (iii) Within (30) days after the end
of each Lease Year, Tenant shall deliver to Landlord a complete and
accurate statement, signed and certified by Tenant, showing (a)
Gross Sales for such Lease Year; and (b) the computation of
Percentage Rent for such Lease Year. In the event such statement
reflects that Tenant owes Landlord Percentage Rent in addition to
the sum of monthly Percentage Rent payments previously made during
such Lease Year, Tenant shall pay the amount of such additional
Percentage Rent to Landlord at the time such statement is delivered
to Landlord. In the event such statement reflects that the sum of
monthly Percentage Rent payments previously made during such Lease
Year exceeds the Percentage Rent actually due for such Lease Year,
the amount of such excess shall be credited against the next due
monthly payments of Percentage Rent hereunder. If such excess
should occur in the last Lease Year of the Term, Landlord shall pay
the amount of such excess to Tenant within thirty (30) days after
receipt of such statement.
(e) During the Term, Tenant shall not directly or
indirectly engage in any similar or competing business within three
(3) miles of the Shopping Center. This restriction shall not apply
to Tenant's stores, if any, presently open and in operation within
such area. As used in this Section 4, the word "Tenant" shall
include: (i) if Tenant is a corporation, all of Tenant's officers,
directors, employees, or shareholders, jointly and s~verally, and
all entities in which Tenant or its officers, directors; employees,
or shareholders, jointly and severally, shall have any interest;
and (ii) if Tenant consists of one (1) or more partners,
individuals, and/or unincorporated entities, each partner, the
respective spouses and children of such partners and individuals,
jointly and severally, and all corporations and/or other entities
in which such partners, individuals, entities, or any member of
such unincorporated entities, jointly and severally, shall have any
interest.
(f) If Tenant shall engage in any similar or competing
business in violation of Section 4 (e) hereof, in addition to any
and all other remedies available to Landlord at law and in equity,
the amount of Gross Sales, made by such competing or similar
business shall be included in Gross Sales far the Premises in the
computation of Percentage Rent.
GROSS SALES DEFINED
Section 5. (a) The term "Gross Sales" as used herein shall be
construed to include the entire amount of the actual sales price of
all goods and services provided at, in, on, or from the Premises,
including, without limitation, mail or telephone orders received or
filled at the Premises, all deposits not refunded to purchasers,
orders taken at or from the Premises (although said orders may be
filled elsewhere), and sales and receipts by any sublessee,
concessionaire, licensee or other party in the Premises. Each
installment or credit sale shall be treated as a sale for the full
price in the month during which such installment or .credit sale
shall be made, irrespective of the time when Tenant shall receive
payment (whether full or partial) from its customer. Layaway sales,
so-called, shall be included in the Gross Sales to the extent of
the down payment and any further payments thereupon during each
calendar month. Gross Sales shall not include the following: (i)
sums collected and paid out by Tenant for any sales or excise tax
imposed by any duly constituted governmental authority; (ii) the
exchange of merchandise between the stores of Tenant, if any, where
such exchanges of goods or merchandise are made solely for the
convenient operation of the business of Tenant and not for the
purpose of consummating a sale which has theretofore been made at,
in, on, or from the Premises, and/or for the purpose of depriving
Landlord of the benefit of a sale which otherwise would be made at,
in, on, from, or upon the Premises; (iii) the amount of returns to
shippers or manufacturers; (iv) the amount of any cash or credit
refund made upon any sale where the merchandise sold, or some part
thereof, is thereafter returned by the purchaser and accepted by
Tenant; (v) sales of fixtures; or (vi) all sums and credits
received in settlement of claims for loss or damage to merchandise.
(b) Ail sales shall be recorded by means of cash
registers or computers ("Registers") which display to the customer
the amount of the transaction. Ail registers shall be equipped with
sales totalizer counters for all sales categories and a sequential
transaction totalizer counter, which counters are locked in,
constantly accumulating, and which cannot be reset. Said registers
shall further contain tapes upon which sales details and sequential
transaction numbers are imprinted. Beginning and ending sales
totalizer readings shall be made a matter of daily record. Landlord
may require Tenant to provide Landlord by noon of the next business
day a recapitulation of Gross Sales to be set forth upon forms
provided by Landlord. Failure to make available a proper receipt to
each customer upon his request of the same upon payment shall
constitute a breach of this' Lease.
Tenant shall keep on the Premises, or at its principal
office, true and complete records and accounts of all Gross Sales,
including daily bank deposits, in, at, and from the Premises. Such
books and records shall include such sale records as would normally
be examined by an accountant pursuant to generally accepted
auditing standards in performing an audit of Tenant's sales or the
sales of its subtenants or concessionaires.
On or before the twentieth (20th) day of each month,
Tenant shall furnish to Landlord a true and accurate statement for
each preceding month of all Gross Sales during said preceding month
(showing the refunds and returns deducted in computing the amount
of such Gross Sales), which statement shall be certified by an
authorized representative of Tenant to be correct. Tenant agrees to
give Landlord access during business hours to such boo]cs and
records. Tenant agrees that it will keep and preserve for at least
thirty-six (36) months after the end of each Lease Year all sales
slips, cash register tape readings, sales books, bank books, or
duplicate deposit slips, and other evidence of Gross Sales for such
year. Landlord shall have the right at any time and from time to
time to audit all of the books of account, bank statements,
documents, records returns, papers, and files of Tenant relating to
Gross Sales and Tenant on request by Landlord shall make all such
matters available for such examination at the premises or at its
principal office. If Landlord should have such an audit made for
any year and the Gross Sales shown by Tenant's statement for such
year shall be found to be understated by more than three percent
(3%), then, in addition to immediately paying Landlord the full
amount of the understated Percentage Rent, Tenant shall pay to
Landlord the cost of such audit. Landlord's right to have such an
audit made with respect to any year shall expire thirty-six (36)
months after Tenant's statement for such year shall have been
delivered to Landlord. Landlord shall have the right to terminate
this Lease upon notice to Tenant if there should be more than two
(2) audits during the Lease Term which reveal understatements of
gross sales by Tenant by more than three percent (3%).'
(c) Ail statements of Gross Sales shall be delivered to
Landlord's Address or to such other place as Landlord may from time
to time direct by written notice to Tenant.
(d) Computation of the Percentage Rent specified herein
shall be made separately with regard to each calendar month and
each Lease Year of the Term hereof, it being understood and agreed
that the Gross Sales of any Lease Year and the Percentage Rent due
thereon shall have no bearing on or connection with the Gross Sales
of any other Lease Year.
(e) It is understood and agreed that Landlord shall in
no event be construed or held to be a partner, co-venturer or
associate of Tenant in the conduct of Tenant's business, nor shall
Landlord be liable for any debts incurred by Tenant in the conduct
of Tenant's business. It is understood and agreed that the
relationship is and at all times shall remain that of Landlord and
Tenant. Landlord and Tenant acknowledge and agree that neither
shall be subject to any implied obligations to the other, by reason
of the fact that this Lease provides for the payment of Percentage
Rent.
.ADDITIONAL RENT
Section 6. (a) Tenant agrees to pay to Landlord, as additional
rent ("Additional Rent") for the Premises, throughout the Term, the
following amounts:
(i) Tenant's Proportionate Share of the cost of
operating and maintaining the Common Areas, which areas are defined
in Section 7, (the "Common Area Cost,'), including, without
limitation, the cost of the following: lighting, utilities,
cleaning, snow and trash removal, line painting, security (if
provided), management fees not to exceed 5% of all rent and
additional rent charged for the Shopping Center, maintenance,
materials, labor costs, equipment, (including, without limitation,
the cost of service agreements on equipment), tools, general
repairs, employee benefits and payroll taxes, accounting fees,
legal fees, permits, license and inspection fees, sales, use and
service taxes, and the repair or replacement of pav~ng, curbs,
stations, first aid stations, comfort stations, stairways, truck
ways, loading docks, package pick-up stations, sidewalks, ramps,
the parking lot, driveways, any garage, landscaping, drainage
facilities, and lighting facilities, including traffic lights, as
may be necessary from time to time, and any other cost of operation
of the improvements on the Common Areas. The Common Area Costs
shall include depreciation of equipment acquired for use in Common
Area maintenance, but shall not include the original cost thereof.
(ii) Tenant's Proportionate Share of any real estate and
ad valorem taxes and assessments (1) which shall or may become a
lien upon, or be assessed, imposed, or levied by lawful taxing
authorities against the land upon which the Shopping Center is
located, the Building, and other improvements on the Shopping
Center for the tax years (the years for which a lien is imposed)
falling wholly or partially within the Term of this Lease; (2)
which arise in connection with the use, occupancy, or possession of
the Shopping Center or any part thereof or any land, buildings, or
other improvements thereon; (3) which become due and payable out of
or for the Shopping Center, any part thereof, or any land,
buildings, or other improvements thereon; or (4) which are in~osed,
assessed, or levied in lieu of, in substitution for, or in addition
to any or all of the foregoing (collectively the "Tax Cost"). The
Tax Cost shall include any fees, expenses or costs (including
attorneys' fees, expert fees and appraisal fees) incurred by
Landlord in protesting any assessments, levies or the tax rate, but
shall not include any charge (such as a water meter charge) which
is measured by actual user consumption. A real estate tax bill or
copy thereof submitted by Landlord to Tenant shall be' conclusive
evidence of the amount of any real estate taxes, assessments, or
installment thereof. In addition, Tenant shall pay all taxes levied
against personal property, fixtures and Tenant's improvements in
the Premises. If such taxes for which Tenant is liable are levied
against Landlord or Landlord's property and if Landlord elects to
pay the same or if the assessed value of Landlord's property is
increased by inclusion of any such items and Landlord elects to pay
the taxes based on such increase, Tenant shall pay to Landlord upon
demand that part of such taxes for which Tenant is liable
hereunder.
(iii) Tenant's Proportionate Share of all premiums for
public liability, fire and extended coverage or all risk, business
interruption, and/or rent loss, and/or any other insurance policy
which may reasonably be carried by Landlord insuring the Premises,
the Building, the Common Areas, the Shopping Center, or any
improvements therein (the "Insurance Cost").
(iv) A proportionate share of all utilities services not
measured by a separate meter for the Premises and provided to
Tenant and other tenants of the Shopping Center (the "Utility
Cost"). Tenant's share of the Utility Cost shall be determined on
the basis of the total square feet of floor area of the Premises as
a percentage of the total square feet of floor area leased by all
tenants provided such services. Tenant shall pay it~ share of such
cost, together with an amount equal to fifteen percent (15%)
thereof as payment of administrative costs of Landlord, within ten
(10) days after demand therefor. Landlord shall not bill Tenant for
such cost more often than monthly. In the event Landlord determines
that it is"not appropriate to base the utility bills on Tenant's
proportionate share due to the nature of Tenant's business
activities, Landlord may use its discretion in allocating such
bills.
(v) Tenant shall pay to Landlord prior to the
Commencement Date the Annual Promotional Fund Cost indicated on the
Reference Page, as Tenant's initial annual payment for Tenant's
share of the costs ("Promotional Fund Costs") of a promotional fund
("Promotional Fund") to be used to pay all costs and expenses
incurred in connection with the formulation and %execution of
publicity programs for the promotion of the Shopping Genter. Such
programs, which, at Landlord's option, shall be determined by an
advertising agency or firm or volunteer committee of tenants, may
include, without limitation, special events, shows, displays,
advertisements, seasonal events, and promotional literature;
provided, however, that Landlord or an outside advertising agency
approved by Landlord shall have the right to review and approve
such publicity programs, the items on the Promotional Fund budget
for each year, and any amendments to said budget. A portion of the
Promotional Fund may be applied to pay costs of administering the
Promotional Fund. Tenant's initial payment to the Promotional Fund
shall be increased in such Lease Years, if any, that the Annual
Fixed Rent is increased pursuant to Section 3 hereof by the
percentage increase in the Annual Fixed Rent. Tenant agrees to
advertise in any and all special Promotional Fund newspaper
sections, tabloids or other advertisements, (including audio and/or
visual media) and agrees to cooperate and participate fully in all
special sales and promotions sponsored by the Promotional Fund.
(b) Tenant's Proportionate Share of the Common Area
Cost, the Tax Cost, and the Insurance Cost shall be estimated by
Landlord no later than thirty (30) days prior to the first day of
each Lease Year. Landlord shall notify Tenant of such estimates
which shall be paid, together with an amount equal to fifteen
percent (15%) thereof as payment of administrative costs of
Landlord, by Tenant in advance, on the first day of each and every
calendar month throughout such Lease Year. At the end of the Lease
Year, when Landlord has calculated the exact amount of Tenant's
Proportionate Share of such costs, Landlord shall notify Tenant of
such exact amount. Any deficiencies in the payments 'theretofore
(including said administrative costs) made by Tenant shall be paid
by Tenant to Landlord within ten (10) days of receipt of said
notice. Any surplus paid by Tenant during the preceding Lease Year
shall be applied against the next due monthly installments of such
costs due from Tenant. During any part of the Term which shall be
less than a full calendar year, any and all such costs shall be
prorated on a daily basis so that Tenant shall only pay Tenant's
Proportionate Share of such costs attributable to the portion of
the calendar year occurring within the Term.
(c)' The term "rent" as herein used shall include Annual
Fixed Rent, Percentage Rent and Additional Rent.
COMMON AREAS
Section 7. Subject to the Rules and Regulations specified in
Section 11 hereof and Landlord's rights under Section l(c) hereof,
Landlord hereby grants to Tenant and Tenant's employees, agents,
customers, and invitees the nonexclusive right, during the Term, to
use, subject to the rights of governmental authorities, easements,
public highways and other restrictions of record, in common with
others granted the use thereof, the Common Areas located within the
Shopping Center. The term "Common Areas" as used in this Lease
shall mean the entire Shopping Center less the gross leasable area
of the Shopping Center and shall include, without limitation, the
parking areas, roadways, pedestrian sidewalks, loading docks,
delivery areas, landscaped areas, and all other areas or
improvements which may be provided by Landlord for the general use
of tenants of the Building and the Shopping Center and their
agents, employees, and customers. Landlord shall be responsible for
the operation, management, and maintenance of the Common Areas. The
manner in which the Common Areas shall be maintained and the
expenditures therefor shall be at the reasonable discretion of
Landlord. Landlord may temporarily close parts of the Common Areas
for such periods of time as may be necessary for (i) temporary use
as a work area in connection with the construction of buildings or
other improvements within the Shopping Center or contiguous
property; (ii) repairs or alterations in or to the Common Areas or
to any utility-type facilities; (iii) preventing the public from
obtaining prescriptive rights in or to the Commo~ Areas; (iv)
emergency or added safety reasons; or (v) doing and performing such
other acts as in the use of good business judgment Landlord shall
determine to be appropriate for the Shopping Center; provided,
however, that Landlord shall use reasonable efforts not to unduly
interfere with or disrupt Tenant's business.
CONSTRUCTION OF PREMISES
Section 8. (a) Prior to the Commencement Date, Landlord shall
complete the improvements to the Premises described in Exhibit "C"
attached hereto and made a part hereof by reference. Tenant hereby
approves Exhibit "C" and all of the improvements, plans and
specifications described therein. It is understood and agreed by
Tenant that changes in such improvements, plans and specifications
which will not materially interfere with Tenant's use of the
Premises and which may be necessary during construction of the
Premises shall not affect, invalidate, or change this Lease or any
of its terms and provisions.
(b) Landlord's work in accordance with Exhibit "C" shall
be deemed approved by Tenant in all respects thirty (30) days after
the Commencement Date, unless prior thereto Landlord receives
written notice from Tenant of any defect in such work. Any
disagreement which may arise between Landlord and Tenant concerning
the work to be performed by Landlord shall be resolved by the
decisions of Landlord's architect.
(c) Tenant shall complete the improvements to the
Premises described in Exhibit "D" attached hereto and made a part
hereof by reference. Landlord and Tenant hereby approve'Exhibit "D"
and all of the improvements, plans and specifications described
therein, provided that Tenant's work described in Exhibit "D" shall
be performed in accordance with the provisions of Section 12(a) (i)
hereof; and provided further that any change in the improvements,
plans and specifications described in Exhibit "D" shall be approved
by Landlord in writing in accordance with the provisions of Section
12(a) (ii) hereof.
USE
Section 9. (a) The Premises shall be occupied and used
exclusively for the purposes described on the Reference Page and
for no other use, unless Tenant has obtained Landlord's prior
written consent, which consent may be withheld in Landlord's sole
discretion for any reason or no reason whatsoever. Tenant shall
commence business in the Premises on or before sixty (60) days
after the Commencement Date, shall operate continuously one hundred
percent (100%) of the Premises during the entire Term, and shall
keep the Premises fully stocked with merchandise and staffed with
personnel so as to maximize Gross Sales at the Premises at all
times. Tenant shall conduct its business in the Premises on all
business days during all hours as from time to time may be
reasonably determined by Landlord to be consistent with the days
and hours of other tenants in the Shopping Center, but in no event
less than eight (8) hours in a business day, five (5) days a week
and forty (40) hours a week (Holidays excepted). Tenant may close
the Premises during reasonable periods for repairing, cleaning or
decorating the Premises, with the prior written consent of
Landlord.
(b) Tenant agrees to conduct its business in the
Premises under Tenant's Trade Name as indicated on the Reference
Page.
(c) Tenant shall use and occupy the Premises in
accordance with all governmental laws, ordinances, rules, and
regulations and shall keep the Premises in a clean, careful, safe,
and proper manner. Tenant shall not use, or allow the Premises to
be used, for any purpose other than as specified herein and shall
not use or permit the Premises to be used for Any unlawful,
disreputable,'or immoral purpose or in any way that will injure the
reputation of the Shopping Center. Tenant shall not permit any
activities in the Premises which may create or cause noise levels
which are audible outside the Premises and disturbing to
neighboring residences, other tenants or their customers or
employees. Tenant shall not permit the Premises to be occupied in
whole or in part by any other person or entity. Tenant shall not
cause or permit the use or occupancy of the Premises to be or
remain a nuisance or disturbance, as determined by Landlord in ~ts
sole discretion, to neighboring residences, other tenants,
occupants, or users of the Shopping Center.
UTILITIES
Section 10. (a) (i) Landlord shall provide, up to the lease line of
the Premises, the necessary mains and conduits to provide water,
sewer, gas (if available by public utilities) and electric service
to the Premises. Tenant shall duly and promptly pay to the supplier
thereof all bills for utilities consumed in the Premises measured
by a separate meter for the Premises.
(ii) If Tenant shall use any utility service for any
purpose in the Premises which is or can be measured by a separate
meter for the Premises and Landlord shall elect to supply such
service, Tenant shall accept and use the same as tendered by
Landlord and pay Landlord therefor at the applicable rates charged
by Landlord. In no event shall Tenant pay to Landlord for any such
service more than would be chargeable to Tenant by the utility
company providing such service. Payment for any and all.water, gas,
sewer, and electricity service used by Tenant, if furnished by
Landlord, shall be made monthly as Additional Rent within thirty
(30) days of the presentation by Landlord to Tenant of bills
therefor.
(iii) Notwithstanding anything to the contrary provided in
this Section 10 or in Subsection 6(a) (iv), Tenant acknowledges that
water service to the Shopping Center shall be supplied by Landlord,
and Tenant agrees to purchase same from Landlord and to pay the
charges therefor when bills are rendered at the applicable rates.
Such water service shall be measured by a master meter and Tenant's
share of the charges for such service shall be allocated by
Landlord, at Landlord's option, either (a) on the basis of the
total square feet of floor area at the Premises as a percentage of
the total square feet of floor area leased by all tenants in the
Shopping Center provided such water service; or (b) based upon
readings taken from a water sub-meter for the Premises, if Landlord
elects to install such a sub-meter. All such charges shall be paid
monthly to Landlord as Additional Rent within thirty (30) days of
the presentation by Landlord to Tenant of bills therefor.
(b) In the event Landlord supplies any sanitary sewer
facilities to the Premises, Tenant shall pay as Additional Rent
Tenant's Proportionate Share of the cost of operating and
maintaining such facilities, including, without limitation, the
rental cost and/or amortization of such facilities.
(c) Landlord shall have the right to cut off and
discontinue, without notice to Tenant, ahy utility or other service
whenever and during any period for which bills for the same, rent,
or other obligations hereunder are not promptly paid or performed
by Tenant.
(d) The obligations of Tenant to pay for utility service
as herein provided shall commence on the Commencement Date.
Landlord shall not be liable in damages or otherwise should the
furnishing of such services to the Premises be interrupted by fire,
accident, riot, strike, act of God, the making of necessary repairs
or improvements, or other causes beyond the control of Landlord.
(e) Landlcrd shall not be liable in the %event of any
interruption in the supply of any utilities. Tenant agrees that it
will not install any equipment which will exceed or overload the
capacity of any utility facilities serving the Premises and that if
any equipment installed by Tenant shall require additional utility
facilities, installation of the same should be at Tenant's expense,
but only after Landlord's written approval of same.
RULES AND REGULATIONS
Section 11. Tenant agrees that Landlord has the right, at any time
and from time to time, for the general welfare of the Shopping
Center and its occupants, to impose reasonable rules and
regulations of general application governing the conduct of
occupants of the Shopping Center and their use of the Common Areas.
Tenant agrees to comply with any and all such rules and regulations
imposed by Landlord, including, without limitation, those rules and
regulations set forth in Exhibit "E"
CHANGE OF IMPROVEMENTS BY TENANT
Section 12] (a) (i) Upon prior written approval of Landlord,
Tenant shall have the right during the Term to make such interior
alterations, changes and improvements to the Premises (except
structural alterations, changes, or improvements), as may be proper
and necessary for the conduct of Tenant's business and for the full
beneficial use of the Premises, provided Tenant shall (A) pay all
costs and expenses thereof; (B) make such alterations, changes, and
improvements in a good and workmanlike manner, with new materials
of first-class quality, and in accordance with all appl.icable laws
and building regulations; and (C) provide Landlord reasonable
assurances, prior to commencing such alterations, changes, and
improvements, that payment for the same will be made by Tenant.
Tenant shall not make any structural alterations, changes or
improvements to the Premises.
(ii) In order to obtain Landlord's approval for such
alterations, changes, and improvements, Tenant shall submit to
Landlord plans and specifications describing the design, materials,
style, and appearance of such alterations, changes, and
improvements with reasonable particularity. Within thirty (30) days
after receipt of such plans and specifications, Landlord shall
notify Tenant of any Objections of Landlord. Tenant shall cure the
cause for such objection within thirty (30) days after receipt of
such notice and shall resubmit such plans and specifications for
Landlord's review and approval. Landlord may charge Tenant a
reasonable charge to cover Landlord's overhead as it relates to
such proposed work. Prior to construction, Tenant shall provide
such financial assurances as Landlord shall require to assure
payment of the costs thereof and to protect Landlord against any
loss from any mechanic's, materialmen's, or other liens. Tenant
shall not be permitted to enter upon the roof of any building
without the prior consent of Landlord.
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(b) Except as otherwise provided below, all signs,
equipment, furnishings, nonpermanent improvements, and trade
fixtures within the Premises, installed in the Premises by Tenant,
and paid for by Tenant, shall remain the property of Tenant and
shall be removed by Tenant upon the termination of this Lease,
provided that any of such as are affixed to the Premises and
require severance shall be removed by Tenant and Tenant shall
repair any damage caused by such removal. By written notice to
Tenant prior to expiration or termination of the Term, Landlord
shall have the right to require Tenant to leave in the Premises
equipment, improvements, or fixtures attached to the Premises or
the Building. Anything contained herein to the contrary
notwithstanding, the HVAC Facilities, and related systems shall at
all times remain the property of Landlord and shall not be removed
by Tenant.
REPAIRS AND MAINTENANCE %
Section 13. (~) Landlord shall maintain the foundation, the
exterior structural walls, and the roof of the Building in good
repair, except that Tenant shall reill~urse Landlord for the cost of
any repair occasioned by the act or negligence of Tenant, its
agents, employees, invitees or licensees. Landlord shall not be
required to make any other improvements or repairs of any kind upon
the Premises and appurtenances thereto, except as otherwise
provided in this Lease. If the Premises should become in need of
repairs required to be made by Landlord hereunder, Tenant shall
give immediate written notice thereof to.Landlord, and Landlord
shall not be responsible in any way for failure to make any such
repairs until a reasonable time shall have elapsed after the giving
of such written notice. Landlord's sole liability shall be limited
to the cost of the repair. Landlord shall not be liable to Tenant
for any interruption of Tenant's business or inconvenience caused
Tenant or Tenant's assigns, sublessees, customers, invitees,
employees, licensees or concessionaires in the Premises on account
of Landlord's performance of any repair, maintenance or replacement
in the Premises, any other work therein or in the Shopping Center
pursuant to Landlord's rights or obligations under this lease so
long as such work is being conducted by Landlord in accordance with
the terms of the Lease and without gross negligence or gross
disregard for Tenant's business operations. Unless otherwise
provided herein, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference
with Tenant's business arising from the makin~ of any repairs,
alterations or improvements in or to any portion of the Shopping
Center or the Premises or in or to fixtures, appurtenances and
equipment therein.
(b) At the sole cost and expense of Tenant and
throughout the Term, Tenant shall keep and maintain the Premises in
good order, condition, and repair, in a clean, sanitary, and safe
condition in accordance with the laws of the State in which the
Premises are located, and in accordance with all directions, rules,
and regulations of the health officer, fire marshal, building
inspector, or any other proper officer of the governmental agencies
having jurisdiction over the Premises. Without limiting the
foregoing, Tenant shall be responsible for maintenance, repair,
and, with Landlord's consent, replacement as needed of all
electrical, plumbing, heating, ventilating, air conditioning, and
utility systems located on the Premises, all plate glass and
windows, window fittings and sashes, and interior and exterior
doors, all fixtures within the Premises, all interior walls, floors
and ceilings, water heaters, termite and pest extermination, all of
Tenant's improvements and trade fixtures. Tenant shall keep and
maintain the Premises in accordance with all requirements of law
concerning the manner, usage, and condition of the Premises and
appurtenances thereto, as the same shall be in effect from time to
time. Tenant shall permit no waste, damage, or injury to the
Premises. If at any time and from time to time during the Term, and
any renewal thereof, Tenant shall fail to make any maintenance,
11
repairs or replacements in and to the Premises as required in this
Lease, Landlord shall have the right, but not the obligation, to
enter the Premises and to make the same for and on behalf of
Tenant, and all sums so expended by Landlord shall be deemed to be
Additional Rent hereunder and payable to Landlord upon demand.
Tenant shall keep in force throughout the Lease Term maintenance
contracts for the heating, ventilating and air conditioning systems
reasonably satisfactory to Landlord.
WAIVER OF LIABILITY BY TENANT
Section 14. Landlord and Landlord's agents and employees shall not
be liable for, and Tenant unconditionally and absolutely waives any
and all causes of action, rights, and claims against Landlord and
its agents and employees arising from, any damage or injury to
person or property, regardless of cause, sustained by Tenant or any
person claiming through or under Tenant, resulting from any
accident or occurrence in or upon the Premises of any o~her part of
the Building or the Shopping Center, unless the same shall be due
to the 9ross negligence of Landlord and/or Landlord's agents and
employees. This provision shall survive the termination or
expiration of this Lease.
INDEMNIFICATION AND INSURANCE
Section 15. (a) Tenant will defend, inderanify, and save Landlord
harmless from and against any and all claims, actions, lawsuits,
damages,, liability, and expense (including, without limitation,
attorneys' fees) arising from loss, damage, or injury to persons or
property occurring in, on, or about the Premises, arising out of
the Premises, or occasioned wholly or in part by any act or
omission of Tenant, Tenant's agents, contractors, customers or
employees.
(b) At all times from the Commencement Dat~ and during
the Terra or any Renewal Term, Tenant shall, at its expense, keep in
full force and effect the following insurance policies insuring
Tenant, Landlord, and Landlord's mortgagee: (i) public liability
insurance in companies acceptable to Landlord with minimum limits
of (a) One Million Dollars ($1,000,000.00) on account of bodily
injuries to or death of one (1) person, and One Million Dollars
.($1,000,000.00) on account of bodily injuries to or death of more
than one (1) person as the result of any one (1) accident or
disaster, and One Million Dollars ($1,000,000.00) on account of
damage to property; or (b) One Million Dollars ($1,000,000) Bodily
Injury Liability and Property Damage Liability Combined Single
Limit Coverage; and (ii) all-risk hazard insurance covering
Tenant's improvements to the Premises and all equipment arid
contents within the Premises for the full replacement value and
business interruption insurance for a minimum of six (6) months.
Prior to the Commencement Date and upon each renewal, Tenant shall
deposit with Landlord the policies of such insurance, or
certificates thereof, showing Landlord and its mortgagee as
additional insureds, and shall update the same prior to expiration
thereof. Tenant's insurance shall not be cancelable without thirty
(30) days prior written notice to Landlord.
(c) Tenant shall not carry any stock of goods or do
anything in or about the Premises which will in ally way increase
the insurance rates on the Premises, the Building and/or the
Shopping Center. Any such increase shall be paid by Tenant to
Landlord within thirty (30) days after written demand therefor.
(d) Ail casualty coverage insurance carried by Landlord
or Tenant shall provide for waiver of subrogation against Landlord,
Tenant and other tenants in the Shopping Center on the part of the
insurance carrier. Evidence of the existence of such waiver shall
be furnished by either party to the other party on request.
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SIGNS
Section 16. ~rior to opening for business, Tenant shall install an
identification sign for the Premises at its cost and expense, which
sign shall comply with Exhibit "F". Tenant shall not erect or
install any other signs except as expressly permitted by Landlord.
All permitted signs shall comply with the terms and provisions of
Exhibit "F" and all requirements of appropriate governmental
authorities. All necessary permits or licenses shall be obtained by
Tenant. Tenant shall maintain all permitted signs in good condition
and repair at all times and shall save Landlord harmless from any
injury to person or property arising from the erection and
maintenance of said signs. Upon vacating the Premises, Tenant shall
remove all signs and repair all damage caused by such removal.
ASSIGNMENT AND SUBLETTING
Section 17. (a) Neither this Lease nor any or all interest herein
shall be sold, mortgaged, pledged, encumbered, assigned,
transferred, or otherwise disposed of in any manner by Tenant,
voluntarily or involuntarily, by operation of law, or otherwise,
nor shall the Premises or any part thereof be sublet, used, or
occupied for the conduct of any business by any third person, firm,
or corporation or for any purpose other than herein authorized,
except with the prior written consent of Landlord, which consent
Landlord may grant or withhold in its sole discretion. A sale or
sales of fifty percent (50%) or more of the capital stock of Tenant
(if Tenant is a corporation) or of the interest in capital,
profits, or losses of Tenant (if Tenant is a partnership) shall be
deemed to be a prohibited assignment of this Lease within the
meaning of this Section 17. In the event Tenant desires to sublet
the Premises, or any portion thereof, or assign this lease, Tenant
shall give written notice thereof to Landlord at least ninety (90)
days but not more than one hundred eighty (180) days prior to the
proposed commencement date of such subletting or assignment, which
notice shall set forth the name of the proposed subtenant or
assignee, the relevant terms of any sublease or assignment and
copies of financial reports and other relevant financial
information on the proposed subtenant or assignee. Notwithstanding
any permitted assignment or subletting, Tenant shall at all times
remain directly and primarily liable for the payment of the rent
herein specified and for compliance with all of its other
obligations under this Lease. Upon the occurrence of a default
under Section 20 of this Lease, which is not cured within the
applicable grace period, if the Premises or any part thereof are
then sublet, Landlord, in addition to any other remedies provided
herein or by law, may collect directly from such subtenant all
rents due and becoming due to Tenant under such sublease and apply
such rent against any sums due to Landlord from Tenant hereunder.
No such collection directly from an assignee or subtenant shall be
construed to constitute a novation or a release of Tenant from tile
further performance of Tenant's obligations hereunder nor shall it
constitute consent of the sublease or assignment. Any guaranty of
Tenant's performance executed as consideration for this Lease shall
remain in full force and effect before and after any such
assignment or subletting. Landlord may require Tenant, and Tenant
hereby agrees, to execute a guaranty of this Lease before Landlord
consents to any such assignment or sublease and to cause the
guarantor of Tenant's Lease to execute an acknowledgment of the
assignment or sublease.
(b) In addition to Landlord's right to consent to any
subtenant or assignee, Landlord shall have the option, in its sole
discretion, in the event of any proposed subletting or assignment,
to terminate this Lease, or in the case of a proposed subletting of
less than the entire Premises, to recapture the portion of the
Premises to be sublet, as of the date the subletting or assignment
is to be effective. The option shall be exercised by Landlord's
giving Tenant written notice thereof within thirty (30) days
following Landlord's receipt of Tenant's written notice as required
13
above. If this Lease shall be terminated with respect to the entire
Premises, the Term shall end on the date stated in Tenant's notice
as the effective date of the sublease or assignment as if that date
had been originally fixed in this lease for the expiration of the
Term. If Landlord recaptures only a portion of the Premises, the
Annual Fixed Rent and Additional Rent during the unexpired Term
shall abate, proportionately, based on the Annual Fixed Rent and
Additional Rent due as of the date immediately prior to such
recapture and Percentage Rent shall be calculated using the
adjusted Annual Fixed Rent. Tenant shall, at Tenant's own cost and
expense, discharge in full any outstanding commission obligation
with respect to this Lease and any commissions which may be owing
as a result of any proposed assignment or subletting, whether or
not the Premises are rented by Landlord to the proposed tenant or
any other tenant.
(c) Consent by Landlord to any assignment br subletting
shall not include consent on a subsequent assignment o$ subletting
of the Premises by Tenant or its assignee or sublessee or the
consent to the assignment or transferring of any Lease renewal
option right~, space option rights or other special privileges
granted to Tenant hereunder (and such options, rights or privileges
shall terminate upon such assignment or subletting), unless
Landlord specifically grants in writing such options, rights or
privileges to assignee or subtenant. Any sale assignment, mortgage,
transfer of this Lease or subletting which does not comply with the
provisions of this Section shall be void.
(d) Notwithstanding Landlord's consent, in the event
that Tenant sells, sublets, assigns, or transfers this Lease and at
any time receives periodic rent and/or other consideration which
exceeds that which Tenant would at that time be obligated to pay to
Landlord, Tenant shall pay to Landlord 100% of the gross increase
in such rent as such rent is received by Tenant and 100% of any
other consideration received by Tenant from such subtenant or such
assignee.
(e) Should Landlord consent to an assignment or sublease
of this Lease, Tenant, its proposed assignee or subtenant and
Landlord shall execute an agreement prepared by or acceptable to
Landlord wherein the proposed assignee or subtenant agrees to be
bound by the terms and conditions of this Lease, and Tenant will
pay to Landlord on demand a sum equal to all of Landlord's costs,
including reasonable attorneys' fees, incurred in connection with
such assignment, sublease or transfer.
REPAIR AFTER CASUALTY
Section 18. (a) (i) Tenant shall immediately give written notice
to Landlord of any damages caused to the Premises by fire or other
casualty. If the Premises shall be destroyed or so injured, due to
any cause, as to be unfit, in whole or in part, for occupancy, and
such destruction or.injury could reasonably be repaired within nine
(9) months from the receipt of insurance proceeds covering such
destruction or injury, then Tenant shall not be entitled to
surrender possession of the Premises, nor, except as hereinafter
provided, shall Tenant's liability to pay rent under this Lease
cease without the mutual consent of the parties hereto. In the case
of any such destruction or injury, Landlord shall repair all
structural portions of the Premises with all reasonable speed and
shall complete such repairs within nine (9) months from the receipt
of such insurance proceeds. Notwithstanding the foregoing, Landlord
shall not be required to expend any amount in excess of the net
insurance proceeds for such repairs. Unless such damage is the
result of the negligence or willful misconduct of Tenant or its
agents, employees or invitees, if during such period Tenant shall
be deprived of the use of all or any portion of the Premises, a
proportionate adjustment in the Annual Fixed Rent and Additional
Rent shall be made corresponding to the time during which, and the
portion of the Premises of which, Tenant shall be so deprived and
14
Percentage Rent shall be calculated using the adjusted Annual Fixed
Rent. Tenant shall, within sixty (60) days after completion of
Landlord's work, complete all work to the Premises (without any
allowance from Landlord) necessary to restore the Premises to their
condition on the date Tenant opened for business to the public.
(ii) If such destruction or injury to the Premises cannot
reasonably be repaired within nine (9) months from the receipt of
insurance proceeds covering such destruction or injury, or if the
net insurance proceeds available for such repairs are not
sufficient in Landlord's reasonable determination, Landlord shall
notify Tenant within ninety (90) days after the occurrence of such
destruction or injury whether or not Landlord will repair or
rebuild. If Landlord elects not to repair or rebuild, this Lease
shall be terminated. If Landlord shall elect to repair or rebuild,
Landlord shall notify Tenant of the time within which such repairs
or reconstruction will be completed, and Tenant st~all have the
option, within thirty (30) days after the receipt of sDch notice,
to elect by written notice to Landlord to either terminate this
Lease and any further liability hereunder, or to extend the Term by
a period of time equivalent to the time from the occurrence of such
destruction or injury until the Premises are restored to their
former condition. In the event Tenant elects to extend the Term,
Landlord shall restore the structural portions of the Premises to
their former condition within the time specified in said notice,
Tenant shall complete the work required of Tenant pursuant to
paragraph (i) above within sixty (60) days after completion of
Landlord's work, and Tenant shall not be liable to pay the Annual
Fixed Rent and Additional Rent for the period from the occurrence
of such destruction or injury until the structural portions of the
Premises are so restored by Landlord and Percentage Rent shall be
calculated using the adjusted Annual Fixed Rent.
(b) In addition to all rights to cancel or terminate
this Lease given to the parties in Section 18(a) hereof, (aa) if
fifty percent (50%) or more of the gross leasable area of the
Shopping Center is destroyed or damaged, regardless of whether or
not the Premises shall be affected by such damage or destruction,
Landlord shall have the right to cancel and terminate this Lease as
of the date of such damage or destruction by giving notice thereof
to Tenant within ninety (90) days after the date of such damage or
destruction and (bb) if the Premises are destroyed or damaged
during the last two (2) years of the Term to the extent of fifty
percent (50%) or more of the total square feet of floor area of the
Premises, then either Landlord or Tenant shall have the right to
cancel and terminate this Lease as of the date of such damage or
destruction by giving notice thereof within thirty (30)' days after
the date of said damage or destruction. However, if subsection (aa)
above does not apply and Tenant shall, within thirty (30) days
following receipt of Landlord's notice of cancellation pursuant to
(bb) above, give Landlord notice of its intention to renew the
Lease for any additional option periods then available to it under
the terms of this Lease, then the notice of Landlord to terminate
the Lease shall be of no force and effect and Section 18(a) (i) or
18(a) (ii) hereof, as the case may be, shall apply. If no additional
option periods are then available to Tenant, this Lease shall
terminate on the date recited in such notice from Landlord.
(c) Notwithstanding anything to the contrary contained
in Sections 18(a) (i), 18(a) (ii), and 18(b) hereof, Landlord may
cancel this Lease with no further liability to Tenant whatsoever in
the event that following any damage, destruction, or injury to the
Premises or the Building, Landlord's mortgagee elects to require
Landlord to make advance payments upon or for any indebtedness
secured by a mortgage on the Shopping Center or any portion
thereof.
(d) In the event of any insurance claim against any of
Landlord's insurance policies, Landlord shall have the right to
recover from Tenant Tenant's Proportionate Share of the amount of
15
any deductible or other loss not reimbursed to Landlord by proceeds
of insurance.
CONDEMNATION
Section 19. (a) In the event the entire Premises shall be taken
by condemnation or right of eminent domain, this Lease shall
terminate as of the day possession shall be taken by the taking
authority and Landlord and Tenant shall be released from any
further liability hereunder. In the event only a portion of the
Premises shall be taken by condemnation or right of eminent domain
and the portion so taken renders the balance unsuitable for the
purpose of this Lease, either Landlord or Tenant shall be entitled
to terminate this Lease, such termination to become effective as of
the day possession of the Premises shall be taken, provided notice
of such termination is given within thirty (30) days after the date
of notice of such taking. If, ii1 such case, this ~ease is not
terminated, Landlord agrees to restore the Premises with reasonable
speed to an architectural unit as nearly like its condition prior
to such taking as shall be practicable. If during and/or after the
work of restoration, Tenant shall be deprived of the use of all or
any portion of the Premises, a proportionate adjustment in the
Annual Fixed Rent and Additional Rent shall be made corresponding
to the time during which and the portion of the Premises of which
Tenant is so deprived and Percentage Rent shall be calculated using
the adjusted Annual Fixed Rent in the formula specified in Section
~ hereof.
(b) Ail damages awarded in connection with the taking of
the Premises, whether allowed as compensation for diminution in
value to the leasehold, to the reversion and fee of the Premises,
to Tenant's leasehold improvements or otherwise, shall belong to
Landlord. Ngtwithstanding the foregoing, Tenant shall be entitled
to make a separate claim to the condemning authority for damage to
merchandise and fixtures, removal and reinstallation costs, and
moving expenses.
(c) Notwithstanding anything to the contrary contained
in Sections 19(a) and 19(b) hereof, Landlord may cancel this Lease
with no further liability to Tenant whatsoever in the event that
(a) fifty percent (50%) or more of the gross leasable area of the
Shopping Center is taken by condemnation or right of eminent
domain, or (b) following any taking of the Premises or the Building
by condemnation or right of eminent domain, Landlord's mortgagee
elects to require Landlord to make advance payments upon or for any
indebtedness secured by a mortgage on the Shopping Center or any
portion thereof.
LANDLORD'S REMEDIES UPON DEFAULT
Section 20. (a) If, at any time after the Commencement Date:
(i) Tenant shall be in default in the payment of rent
or other sums of money required to be paid by Tenant, or in the
performance of any of the covenants, terms, conditions, provisions,
rules and regulations of this Lease, and Tenant shall fail to
remedy such default within ten (10) days of the date when due in
the event the default is as to payment of any sums of money, or,
except as provided in subsection (ii) below, within twenty (20)
days after receipt of written notice thereof if the default relates
to matters other than the payment of money; or
(ii) Landlord shall have an audit made for any year in
accordance with Section 5(b) above and the Gross Sales shown by
Tenant's statement of Gross Sales for such year shall be found to
be understated by more than three percent (3%); or
(iii) Tenant becomes insolvent or makes an assignment
for the benefit of creditors, or if any guarantor of Tenant shall
become insolvent or make an assignment for the benefit of
16
creditors, or if a receiver shall be appointed, or if proceedings
under the Bankruptcy Code shall be instituted by or against Tenant
or any guarantor of this Lease and the same shall not be dismissed
by the Court within ninety (90) days after being filed, or if any
event shall happen which, aside from this provision, would cause
any assignment or devolution of Tenant's interest or occupancy
hereunder by operation of law; then if any of the circumstances
described in (i), (ii) or (iii) above should occur, Landlord may,
in addition to all other remedies given to Landlord in law or in
equity, by written notice to Tenant, terminate this Lease or
without terminating this Lease reenter the Premises by summary
proceedings or otherwise and, in any event, dispossess the Tenant,
it being the understanding and agreement of the parties that under
no circumstances is this Lease to be an asset for Tenant's
creditors by operation of law or otherwise. In the event of such
reentry Landlord may, but need not, relet the Premises or any part
thereof for such rent and upon such terms as Landlord% in its sole
discretion, shall determine (including the right to, relet the
Premises for a greater or lesser term than that remaining under
this Lease, the right to relet the Premises as a part of a larger
area, and the right to change the character or use made of the
Premises). If Landlord decides to relet the Premises or a duty to
relet is imposed upon Landlord by law, Landlord and Tenant agree
that Landlord shall only be required to use the same efforts
Landlord then uses to lease other properties Landlord owns or
manages (or if the Premises is then managed for Landlord, then
Landlord will instruct such manager to use the same efforts such
manager then uses to lease other space or properties which it owns
or manages); provided, however, that Landlord (or its manager)
shall not be required to give any preference or priority to the
showing or leasing of the Premises over any other space that
Landlord (or its manager) may be leasing or have available and may
place a suitable prospective tenant in any such available space
regardless of when such alternative space becomes available;
provided, further, that Landlord shall not be required to observe
any instruction given by Tenant about such reletting or accept any
tenant offered by Tenant unless such offered tenant has a
creditworthiness acceptable to Landlord, leases the entire
Premises, agrees to use the Premises in a manner consistent with
this Lease and leases the Premises at the same rent, for no more
than the Term and on the same other terms and conditions as in this
Lease without the expenditure by Landlord for tenant improvements
or broker's commissions. In any such case, Landlord may, but shall
not be required to, make repairs, alterations and additions in or
to the Premises and redecorate the same to the extent Landlord
deems necessary or desirable, and Tenant shall, upon ~demand, pay
the cost thereof, together with Landlord's expenses of reletting,
including, without limitation, any broker's commission incurred by
Landlord. In the event of a reletting, Landlord may apply the rent
therefrom first to the payment of Landlord's expenses, including
attorneys' fees incurred by reason of Tenant's default and the
expense of reletting (including, without limitation, repairs,
renovation or alteration of the Premises) and then to the amount of
rent and all other sums due from Tenant hereunder, Tenant remaining
liable for any deficiency. Any and all deficiencies shall be
payable by Tenant monthly on the date herein provided for the
payment of Monthly Installments of Fixed Rent. In determining the
deficiencies and rent which would be payable by Tenant hereunder
subsequent to default, the annual rent for each Lease Year of the
unexpired portion of the Term shall be equal to the average Annual
Fixed Rent and Percentage Rent paid by Tenant from the commencement
of the Term to the time of default, or during the preceding three
(3) full calendar years, whichever is shorter.
(b) No termination of this Lease or any taking or
recovery of possession of the Premises shall deprive Landlord of
any of its remedies or rights of action against Tenant, and Tenant
shall remain liable for all past or future rent, including all
Additional Rent, taxes, insurance premiums, and other charges and
rent payable by Tenant under this Lease, during the Term. In no
17
event shall the bringing of any action for rent or other default be
construed as a waiver of the right to obtain possession of the
Premises.
(c) If suit shall be brought for recovery of possession
of the Premises, for the recovery of rent, or for any other amount
due under the terms and provisions of this Lease, or because of the
breach of any other covenant herein contained on the part of
Tenant, and a breach shall be established, Tenant shall pay to
Landlord all expenses incurred therefor, including reasonable
attorneys' fees.
(d) WHEN THIS LEASE AND ITS TERM SHALL HAVE BEEN
TERMINATED ON ACCOUNT OF ANY DEFAULT HEREUNDER AND ALSO WHEN THE
TERM HEREBY CREATED 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 /uN AMICABLE
ACTION IN EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING BY,
THROUGH OR UNDER TENANT AND TO THEREIN CONFESS JUDGMENT FOR THE
RECOVERY BY LANDLORD OF POSSESSION OF THE DEMISED PREMISES TOGETHER
WITH COSTS OF SUIT A/qD REASONABLE ATTORNEYS FEES OF NOT LESS THAN
ONE THOUSAND DOLLARS, FOR WHICH THIS LEASE SHALL BE SUFFICIENT
WARRANT. THEREUPON, IF LANDLORD SO DESIRES, AN APPROPRIATE WRIT OF
POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR
PROCEEDING WHATSOEVER, PROVIDED THAT IF FOR ANY REASON AFTER SUCH
ACTION SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED THAT
POSSESSION OF THE DEMISED PREMISES SHOULD REMAIN IN OR BE RESTORED
TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND
UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF
THIS LEASE OR OF 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 DEMISED
PREMISES AND TO CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF
THE DEMISED PREMISES AS HEREINBEFORE PROVIDED. NOTWITHSTANDING
ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, THE RIGHT OF
LAAIDLORD TO INITIATE AN A~4ICABLE ACTION OF EJECTMENT AS SPECIFIED
ABOVE SHALL NOT PRECLUDE OR LIMIT LANDLORD'S RIGHT TO INITIATE AN
AMICABLE ACTION FOR RENT.
IN THE EVENT OF DEFAULT HEREUNDER 7~WD ALSO WHEN THE TERM HEREBY
CREATED'SHALL HAVE EXPIRED, IT SItALL 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
AGAINST TENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT
AND TO THEREIN CONFESS JUDGMENT FOR DAMAGES FOR ~IMOUNTS DUE
HEREUNDER TOGETHER WITH COSTS OF SUIT AND ATTORNEYS FEES OF FIVE
PERCENT OF THE AMOUNT CLAIMED, FOR WHICH THIS LEASE SHALL BE
SUFFICIENT WARRANT. THEREUPON, IF LANDLORD SO DESIRES, AN
APPROPRIATE WRIT OF EXECUTION MAY ISSUE FORTHWITH, WITHOUT ANY
PRIOR WRIT OR PROCEEDING WHATSOEVER, PROVIDED THAT IF FOR ANY
REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED LANDLORD SHALL
HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT
OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE OR OF TENANT'S
RIGHTS AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER
ACTION OR ACTIONS AS HEREINBEFORE SET FORTH, AND TO CONFESS
JUDGMENT AS HEREINBEFORE PROVIDED. NOTWITHSTANDING ANYTHING
CONTAINED IN THIS LEASE TO THE CONTRARY, TtIE RIGHT OF LANDLORD TO
INITIATE AN ACTION AS SPECIFIED ABOVE SHALL NOT PRECLUDE OR LIMIT
LANDLORD'S RIGHT TO INITIATE ANY OTHER ACTION.
(e) In any amicable action of ejectment or for rent and
other sums, Landlord shall first cause to be filed in such action
an affidavit made by Landlord or someone acting for Landlord,
setting forth the facts necessary to authorize the entry of
judgment 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 warrant of attorney, any rule of court, custom or
18
practice to the contrary notwithstanding.
(f) Tenant expressly waives:
(i) The right to delay execution on any real estate
that may be levied upon to collect any amount which may
become due under the terms and conditions of this Lease and
any right to have the same appraised. Tenant authorizes the
Prothonotary or Clerk to enter a writ of execution or other
process upon Tenaht's voluntary waiver and further agrees
that said real estate may be sold on a writ of execution or
other process.
('ii) Ail rights under the Pennsylvania Landlord and
Tenant Act of 1951 and all supplements and amendments
thereto.
(iii) The right to three (3) months and fifteen (15)
or thirty (30) days' notice required under certain
circumstances by the Pennsylvania Landlord and Tenant Act of
1951, Tenant hereby agreeing that the respective notice
periods provided for in this Lease shall be sufficient in
either or any such case.
(g) The parties hereto shall, and they hereby do,
.waive trial by jury in any action, proceeding, or counterclaim
brought by either of the parties against the other an any matters
whatsoever arising out of, or in any way connected with, this
Lease, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Premises, and/or any claim of injury or damage
arising out of the Premises, the Building, or the Shopping Center.
(h) Ail rights and remedies provided herein or
otherwise existing at law or in equity are cumulative, and the
exercise of one or more rights or remedies by either party shall
not preclude or waive its right to the exercise of any or all of
the others.
DISCHARGE OF LIENS
Section 21. (a) The Tenant shall not cause, suffer, or permit the
Premises, Building, or the Shopping Center to be encumbered by any
liens of mechanic's, laborers, or materialmen, any security
interests, or any other liens. Tenant shall, whenever and as often
as any such liens are filed against the Premises, the Building, or
the Shopping Center and are purported to be for labor or material
furnished or to be furnished to Tenant, discharge without demand by
Landlord the same of record within ten (10) days after the date of
filing by payment, bonding or otherwise, as provided by law. Tenant
shall, upon reasonable notice and request in writing from Landlord,
also defend against Landlord, at Tenant's sole cost and expense,
any action, suit, or proceeding which may be brought on or for the
enforcement of any such lien and shall pay any damages and satisfy
and discharge any judgments entered in such action, suit, or
proceeding and shall save harmless Landlord from any liability,
claim, or damages resulting therefrom. In default of Tenant
procuring the discharge of any such lien, Landlord may, without
further notice, procure the discharge thereof by bonding or payment
or otherwise, and all costs and expenses which Landlord may incur
in obtaining such discharge shall be paid by Tenant as Additional
Rent within ten (10) days of any demand therefor.
(b) Nothing in this Lease, nor any approval by Landlord
of any of Tenant's alterations or contractors, shall be deemed or
construed in any way as constituting consent by Landlord for the
making of any alterations or additions by Tenant, or constituting
a request by Landlord, expressed or implied, to any contractor,
subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for the use or benefit of
Landlord.
19
LIABILITY OF LANDLORD
Section 22. If Landlord shall fail to perform any covenant, term,
or condition of this Lease, and if Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only
out of the proceeds of sale received upon execution of such
judgment and levy thereon against the right, title, and interes~ of
Landlord in the Shopping Center as the same may then be encumbered
and neither Landlord nor any of its partners shall be liable for
any deficiency. It is understood that in no event shall Tenant have
any right to levy execution against any property of Landlord other
than its interest in the Shopping Center. Such right of execution
shall be subordinate and subject to any mortgage or other
encumbrance upon the Shopping Center.
RIGHTS OF LANDLORD
Section 23. (a) Landlord shall have the right, but not the duty,
at all reasonable times, by itself or through its duly authorized
agents, to go upon and inspect all or any part of the Premises and,
at Landlord's option, to make repairs, alterations, and additions
to the Premises, the Building, or any part thereof, or to show the
Premises or the Building to lenders or to prospective purchasers or
tenants.
(b) If Tenant shall fail to fulfill any of its
obligations hereunder, Landlord shall have the right to fulfill
such obligation and any amounts so paid by Landlord are agreed and
declared to be "Additional Rent" due and payable to Landlord from
Tenant with the next installment of Monthly Installment of Fixed
Rent due thereafter under this Lease. Any such amounts which shall
be paid by Landlord on behalf of Tenant shall bear interest from
the date so paid by Landlord at the rate of eighteen percent (18%)
per annum or at the prime rate of interest then being charged by
Chase Manhattan Bank N.A., a national banking association,
whichever is higher provided that in no event shall such rate to be
charged Tenant exceed the rate otherwise permitted by law.
(c) Ail rights of Landlord hereunder shall be deemed to
accrue to the benefit of Landlord's mortgagee, if any.
SUBORDINATION TO MORTGAGE
Section 24. (a) Tenant understands, acknowledges and agrees that
this Lease is and shall be subordinate to any mortgage, ground
lease or other lien or restriction of record now Dxisting or
hereafter placed on or affecting the Premises, the Building, or the
Shopping Center, or any part thereof, and to any renewals,
refinancing or extensions thereof and to all advances made or
hereafter to be made upon the security thereof. This subordination
provision shall be self--operative and no further instrument of
subordination shall be required by any mortgagee or lender.
However, Landlord is hereby irrevocably vested with full power and
authority to subordinate this Lease to any mortgage or other lien
now existing or hereafter placed upon the Premises, the Building,
or the Shopping Center as a whole. Further, Tenant agrees, upon the
demand or request of any party in interest, to execute promptly
such further instruments or certificates as may be necessary to
carry out the intent of this Section.
(b) ~otwithstanding the provisions of Section 24(a)
hereof, any mortgagee may at any time subordinate the lien of its
mortgage to the operation and effect of this Lease without
obtaining Tenant's consent thereto, by giving the Tenant written
notice thereof, in which event this Lease shall be deemed to be
senior to such mortgage without regard to their respective dates of
execution, delivery, and/or recordation among the land records of
the county in which the Shopping Center is located, and thereafter
such mortgagee shall have the same rights as to this Lease as it
would have had, were this Lease executed and delivered before the
2O
execution of such mortgage.
(c) Tenant shall, within ten (10) days from request by
Landlord, execute and deliver to such persons as Landlord shall
specify a statement in recordable form certifying that this Lease
is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as so
modified), stating the dates to which rent and other charges
payable under this Lease have been paid, stating that Landlord is
not in default hereunder (or, if Tenant alleges a default, stating
the nature of such alleged default) and further stating such other
matters as Landlord or its mortgagee(s) or proposed purchaser(s)
shall reasonably require.
(d) In the event any proceedings are brought for
foreclosure or in the event of the exercise of the power of sale
under any mortgage or deed of trust, Tenant shall attorn to the
purchaser in any such foreclosure or sale and recognize such
purchaser as landlord under this Lease.
NO WAIVER BY LANDLORD
Section 25. No waiver of any of the terms, covenants, provisions,
conditions, rules, and regulations imposed by this Lease, and no
waiver of any legal or equitable relief or remedy, shall be implied
by the failure of Landlord to assert any rights, declare any
forfeiture, or for any other reason. No waiver of any of said
terms, provisions, covenants, conditions, rules, and regulations
shall be valid unless it shall be in writing signed by Landlord. No
waiver by Landlord or forgiveness of performance by Landlord in
respect to one or more tenants of the Building shall constitute a
waiver or forgiveness of performance in respect to Tenant.
VACATION OF PREMISES
Section 26. Tenant shall deliver and surrender to Landlord
possession of the Premises (including all of Tenant's permanent
work upon and to the Premises, all replacements thereof, and all
fixtures permanently attached to the Premises during the Term)
immediately upon the expiration of the Term or the termination of
this Lease in any other way in as good condition and repair as the
same were on the Commencement Date (loss by any insured casualty
and ordinary wear and tear only excepted) and deliver the keys at
the office of Landlord or Landlord's agent; provided, however, that
upon Landlord's request made at least thirty (30) days prior to the
end of the Term, or the date Tenant is otherwise required to vacate
the Premises, Tenant shall remove all fixtures and equipment
affixed to the Premises by Tenant, and restore the Premises to
their condition on the Commencement Date (loss by any insured
casualty and ordinary wear and tear only excepted), at Tenant's
sole expense. Such removal shall be performed prior to the earlier
of the end of the Term or the date Tenant is required to vacate the
Premises.
MEMORANDUM OF LEASE
Section 27. Upon request by Landlord, Tenant hereby agrees to
execute for recordation a memorandum of this Lease.
RENT DEMAND
Section 28. Every demand for rent wherever and whenever made shall
have the same effect as if made at the time it falls due and at the
place of payment. After the service of any notice or commencement
of any suit, or final judgment therein, Landlord may receive and
collect any rent due, and such cellection or receipt shall neither
operate as a waiver of nor affect such notice, suit, or judgment.
NOTICES
21
Section 29. Any notices, requests, or consents required to be
given by or on behalf of Landlord or Tenant shall be in writing and
shall be sent overnight courier or by registered or certified
United States mail, return receipt requested, postage prepaid,
addressed to the parties hereto at the respective addresses set
forth on the Reference Page, or at such other address as may be
specified from time to time, in writing. Such notice shall be
deemed given when it is deposited in an official United States Post
Office, postage prepaid. Copies of all notices to Landlord shall be
sent to:
Lavipour & Company, LLC
444 Park Avenue South
Suite 302
New York, NY 10016
APPLICABLE LAW AND CONSTRUCTION
Section 30. The laws of the Commonwealth of Pennsylvania shall
govern the validity, performance, interpretation, and enforcement
of this Lease. The invalidity or unenforceability of any provision
of this Lease shall not affect or impair any other provision. All
negotiations, considerations, representations, and understandings
between the parties are incorporated herein. This Lease may be
modified or altered only by agreement in writing between the
parties. Tenant shall have no right to quit the Premises or cancel
or rescind this Lease except as expressly granted herein. This
Lease has been negotiated by Landlord and Tenant and this Lease,
to~ether with all of the terms and provisions hereof, shall not be
deemed to have been prepared by either Landlord or Tenant, but by
both equally. If any provision of this Lease is held to be invalid
or unenforceable, the validity and enforceability of the remainder
of this Lease shall not be affected thereby.
FORCE MAJEURE
Section 31. In the event that either party hereto shall be
delayed, hindered in, or prevented from performing any act required
hereunder by reason of strikes, lockouts, inability to procure
materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war, or any other reason of a
like nature not the fault of the party delayed in performing such
act, then performance of such act shall be excused for the period
of the delay and the period allowed for the performance of such act
shall be extended for a period equivalent to the period of such
delay. Notwithstanding anything contained herein to the contrary,
Tenant shall not be excused from the payment of rent or other sums
of money which may become due under the terms of this Lease.
LANDLORD'S LIEN
Section 32. (a) Tenant hereby grants to Landlord a lien and
security interest on all property of Tenant now or hereafter placed
in or upon the Premises, and such property shall be and remain
subject to such lien and security interest of Landlord for payment
of all rent and other sums agreed to be paid by Tenant herein.
Landlord's lien, however, shall not be superior to a lien from a
lending institution, supplier or leasing company, if such lending
institution, supplier or leasing company has a perfected security
interest in the equipment, furniture or other tangible personal
property which originated in a transaction whereby Tenant acquired
same.
(b) The provisions of this Section relating to such lien
and security interest shall constitute a security agreement under
and subject to the Uniform Commercial Code of the state wherein the
Shopping Center is located, so that Landlord shall have and may
enforce a security interest on all property of Tenant now or
hereafter placed in or on the Premises, in addition to and
22
cumulative of Landlord's liens and rights provided by law or by the
other terms and provisions of this Lease.
(c) Tenant agrees to execute as debtor such financing
statement or statements and such other documents as Landlord may
now or hereafter request in order to protect or further perfect
Landlord's security interest. Notwithstanding the above, Landlord
shall neither sell nor withhold from Tenant Tenant's business
records.
QUIET ENJQYMENT
Section 33. Landlord hereby covenants and agrees that if Tenant
shall perform all of the covenants and agreements herein stipulated
to be performed by Tenant, Tenant shall at all times during the
continuance hereof have peaceable and quiet enjoyment and
possession of the Premises without any manner of let%or hindrance
from Landlord or any person or persons claiming by, ~hrough, or
under Landlord, subject, always, to the terms and provisions of
this Lease.
HOLDING OVER
Section 34. If at the expiration of the Term or any renewal
thereof Tenant continues to occupy the. Premises, such holding over
shall not constitute a renewal of this Lease, but Tenant shall be
a tenant from month to month upon all of the terms, provisions,
covenants, and agreements hereof, except that Landlord may, in its
sole discretion, increase the amount of the Annual Fixed Rent
thereafter due hereunder to an amount equal to 200% of the Annual
Fixed Rent being paid immediately prior to such expirations.
BROKERS
Section 35. Tenant represents and warrants that it has not dealt
with any real estate broker other than the real estate broker(s)
listed on the Reference Page in connection with this Lease.
Landlord shall pay any commission or fee due such broker(s) as a
result of this Lease. Tenant agrees to indemnify Landlord against,
and hold it harmless from, all liabilities arising from any claim
resulting from its having dealt with any other broker in connection
with this Lease.
CAPTIONS
Section 36. Ail paragraph titles or captions contained in this
Lease are for convenience only and shall not be deemed'part of the
context of this Lease.
VARIATION IN PRONOUNS
Section 37. Ail of the terms and words used in this Lease,
regardless of the number and gender in which they are used, shall
be deemed and construed to include any other number or gender, as
the context or sense of this Lease or any paragraph or clause
herein may require, as if such terms and words had been fully and
properly written in the appropriate number and gender.
LENDERS' APPROVAL
Section 38. Notwithstanding anything contained herein to the
contrary, Landlord's'obligations and Tenant's rights under this
Lease are conditioned upon its approval by Landlord's construction
lender and permanent lender. In the event Landlord is unable to
obtain such approvals, Landlord shall notify Tenant of the basis
therefor and Tenant shall have thirty (30) days in which to agree
to any changes requested by such lender in order to make the within
Lease acceptable to it. In the event Tenant fails to agree to any
such changes within said thirty (30) day period, Landlord may
terminate this Lease within thirty (30) days thereafter. In such
23
event, both parties shall be released from any further liability
under this Lease.
SECURITY DEPOSIT
Section 39. The Security Deposit shall be held by Landlord without
liability for interest and as security for the performance by
Tenant of Tenant's covenants and obligations under this Lease, it
being expressly understood that the Security Deposit shall not be
considered an advance payment of rental or a measure of Tenant's
damages in case of default by Tenant. The Security Deposit shall be
paid to Landlord upon execution of this Lease. Landlord may, in its
sole discretion, from time to time without prejudice to any other
remedy, use the Security Deposit to the extent necessary to make
good any default under this Lease or to satisfy any other covenant
or obligation of Tenant hereunder; provided, however, that no
portion of the Security Deposit shall be applied towaz%ds payment of
the last month's rent hereunder without, the prior wri. qten. consent
of the Landlord's mortgagee. Followmng any such applmcatzon of the
Security Deposit, Tenant shall pay to Landlord on demand the amount
so applied in order to restore the Security Deposit to its original
amount. If Tenant is not in default at the tez~ination of this
Lease, the balance of the Security Deposit remaining after any such
application shall be returned by Landlord to Tenant after deduction
therefrom any unpaid obligation of the Tenant to the Landlord as
may arise under this Lease, including, without limitation, the
obligation to restore the Premises pursuant to Section 26 hereof.
If Landlord transfers its interest in the Premises during the term
of this Lease, Landlord may assign the Security Deposit to the
transferee and thereafter Landlord shall have no further liability
to Tenant for the return of such Security Deposit, and Tenant shall
look solely to the transferee for return of such Security Deposit.
NO INCOME PARTICIPATION
Section 40. Neither Tenant nor any other person having an interest
in the possession, use, occupancy or utilization of the Premises
shall enter into any lease, sublease, license, concession or other
agreement for use, occupancy or utilization of the Premises which
provides for rental or other payment for such use, occupancy or
utilization based in whole or in part on the net income or profits
derived by any person from the Premises or portion thereof leased,
used, occupied or utilized (other than an amount based on a fixed
percentage or percentages of receipts or sales), and that any such
purported lease, sublease, license, concession or other agreement
shall be absolutely void and ineffective as a conveyance of any
right or interest in the possession, use, occupancy or'utilization
of any part of the mortgaged Premises.
HAZARDOUS SUBSTANCES
Section 41. In addition to, and not in limitation of any other
provision of this Lease, Tenant agrees not to generate, store, use
treat or dispose of, nor to allow, suffer or permit the generation,
storage, use, treatment or disposal of, any "hazardous waste" or
"hazardous substance" (as those terms are defined in the Resource
Conversation and Recovery Act, 42 U.S.C Sections 6901 et seq., as
amended ("RCRA") or the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Sections 9601 et seq.,
as amended ("CERCLA"), and any rules and regulations now or
hereafter promulgated under either of such acts) or any pollutant
or other contaminant-on, in from or about the Premises or the
Shopping Center, which hazardous material is prohibited or
controlled by any federal, state or local law, ordinance, rule or
regulation now or hereafter in effect. Tenant shall and hereby does
indemnify and hold Landlord harmless from and against any and all
loss, damages, expenses, fees, claims, costs and liabilities
(including, but not limited to, attorneys' fees and costs of
litigation) arising out of or in any manner related to the
"release" or "threatened release" of, and for any clean-up
24
responsibility imposed upon Landlord under any federal, state or
local law, ordinance, rule or regulation now or hereafter in
effect, with respect to any "hazardous waste" or "hazardous
substance" (as those terms are defined in RCRA and CERCLA, and any
rules and regulations now or hereafter promulgated thereunder), or
any pollutant, or other contaminant on, in, from or about the
Premises or the Shopping Center or any portion or portions thereof,
which release or threatened release arises out of or is in any
manner related to Tenant's use or occupancy of the Premises.
Notwithstanding anything contained herein to the contrary, Landlord
shall remain responsible for, and shall indemnify and save Tenant
harmless from and against any and all liability, damages, losses,
claims, suits and other costs (including reasonable attorney's
fees) arising out of, or connected with the presence on, in, or
under the Building of Premises, of any asbestos, PCBs, or any other
hazardous substance or hazardous waste existing prior to the
commencement of this Lease, or resulting from any cause other than
Tenant's occupancy in, or use of, the Premises. ,
BINDING EFFECT
Section 42. The provisions of this Lease shall bind and inure to
the benefit of Landlord and Tenant, and their respective
successors, legal representatives and permitted assigns, subject to
the provisions of Section 17 hereinabove. Tenant shall be bound by
any succeeding party of Landlord for all the terms, covenants and
conditions hereof, provided that such succeeding party complies
with its obligations as Landlord hereunder.
IN WITNESS WHEREOF, intending to be legally bound hereby,
the parties hereto have set their hands this day of August,
1998, as to Landlord, and this day of August, 1998, as to
Tenant.
~tne~s- ~
LANDLORD:
H.g~PD~~ER, INC.
Wit SS ItS:
TEND~NT:
Q.J.J., Inc.
25
STATE OF NEW YORK )
~ ~.) ss:
COUNTY OF NE;': YOXX)
BEFORE ME, a notary public in and for said county and
state, personally appeared David F. Lavipour, Vice President of
Hampden Center, Inc., who acknowledged that, with due authority, he
executed the foregoing instrument on behalf of said Hampden Center,
Inc. and that the same is the free act and deed of said Hampden
Center, Inc. and his free act and deed individually and as such
Vice President.
IN TESTIMONY WHEREOF,
official seal this
I have hereunto set my hand and
day of ~A~_~!, 1998. ~
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF
On this, the ~n~ day of A~t, 1998, before me, the
undersigned officer, personally appeared Q~ ~/~ ' ,
who acknowledged himself to be the ~;~ '~ ~f Q.J.J., Inc.,
a corporation, and that he as such { ~ , being authorized
to do so, executed the foregoing instrument for the purposes
therein contained by signing the name of the corporation by himself
IN WITNESS WHEREOF, I hereunto set my hand and official seal,
My commission expires:
No-t~fy- Public ' '
Notarial Seal
Calharine M. Mil,son, Notary Public
Whitehall Twp. Lehigh County
My Commiss on Expires Jan. 25, 1999
Memb,sr, Per.sylvania ~ of No*aries
26
EXHIBIT "A"
ALL that certain lot or tract of land situate in Hampden Township,
Cumberland County, Pennsylvania more fully bounded and described as
follows, to wit:
BEGINNING at an iron pin (found) on the southern right-of-way line
of the Carlisle Pike (S.R. 1010, 50 R.O.W.) and the line of lands
N/F of William C. Rowland, Jr. thence proceeding in a generally
southern direction South 05 degrees, 45 minutes, 59 seconds East
1173.92 feet to a point on the northern right-of-way line of S.R.
0011 (120 R.O.W.); thence along said right-of-way line North 83
degrees, 59 minutes, 24 seconds West 546.43 to an iron pin (found);
thence by same on a curve to the right having a radius of 3079.36
feet and an arc length of 1237.06 feet to a point on the western
right-of-way line of Sporting Hill Road (S.R. 1013, 40 R.O.W.);
thence along said right-of-way line North 05 degrees~ 30 minutes,
45 seconds West 221.48 feet to a point; thence by l§nds N/F of
David R. Miller North 83 degrees, 04 minutes, 02 seconds East
121.68 feet to an iron pin (found); thence by lands N/F of D.E.S.
Associates and Universal Restaurants, Inc. North 86 degrees, 33
minutes, 17 seconds East 441.20 feet to an iron pin (found); thence
by lands of Universal Restaurants, Inc. North 03 degrees, 14
minutes, 44 seconds West 415.88 feet to a point on the southern
right-of-way line of the Carlisle Pike (S.R. 1010, 50 R.0.W.);
thence by said right-of-way line North 86 degrees, 36 minutes, 37
seconds East 1082.77 feet to an iron pin (found) being the point
and place of BEGINNING.
Containing 31.963 Acres.
A-1
EXHIBIT "B" - DESCRIPTION OF PREMISES
The boundaries and location of the Premises, utilities, paved
ingress, egress, etc., as shown on this site plan sets forth the
general layout of the shopping center and shall not be a warranty
or representation or agreement on the part of Landlord that said
shopping center will be exactly as indicated on this site plan.
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B-1
EXHIBIT "C"
LANDLORD'S WORK
PREMISES WILL BE'DELIVERED IN
A_N "AS IS" CONDITION.
C-1
EXHIBIT "D"
TENANT' S WORK
WORK BY TENA/~T
A. GENERAL REQUIREMENTS:
APPROVALS: The Tenant shall submit to the
Landlord and obtain full approval of all plans,
specifications and work including all roof
openings, signs, etc. Any damage done by Tenant
shall be paid for by the Tenant.
Landlord must approve any and all materials,
equipment and fixtures which become a permanent
part of the structure.
Tenant shall furnish Landlord with a list of all
contractors Tenant intends to use to work in his
premises. Landlord reserves the right to approve or
disapprove of any and all of Tenant's contractors.
All contractors engaged by Tenant as permitted by
Landlord shall be bondable, license contractors,
possessing good labor relations, capable of
performing quality workmanship and working in
harmony with Landlord's and other tenants'
contractors on the job. All work shall be
coordinated with the general project work.
The design of all work and installation undertaken
by Tenant shall be approved by the Landlord. All .
work undertaken shall be at the Tenant's expense
and shall not damage or weaken the structural
strength of the building or any part thereof, and
shall be done in a first-class workmanlike manner
and in accord with all applicable Federal, State,
County and local municipal statutes, ordinances,
regulations, laws and codes. All tenant
construction shall be non-combustible, and no
combustible materials of any nature will be
permitted above the finished ceiling.
PLANS: The Tenant shall deliver to the Landlord
within twenty (20) days after the execution of this
Lease, its plans and specifications for work within
the leased space.
PERMITS, INSPECTIONS, FEES, ETC.: Ail work
installed by Tenant shall be coordinated with and
completed so as not to interfere with Landlord's
construction schedule nor any other tenant's
activities. Tenant shall secure and pay for any
necessary building permits, inspections and fees.
Prior to start of work, Tenant shall forward a copy
of all required permits to the Landlord.
STOREFRONTS: Should Tenant desire an
individualized storefront other than Landlord's
standard, the additional cost of designing and
constructing same shall be done at the Tenant's
expense. The following criteria shall apply for
same. -
Materials, designs and color selections shall
be subject to the prior approval of Landlord
and Landlord's architect.
No portion of the storefront may protrude
beyond the front line of the leased premises
D-1
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nor encroach in any manner into the covered
sidewalk.
c. No unfinished wall area will be permitted on
the storefront.
d. Storefront material shall be selected for
durability and freedom from maintenance.
Temporary storefront: If a Tenant's work is not
completed within the time required by this
Lease (or, in any event, is not completed on
the grand opening date), Landlord may, at
Tenant's expense, install a temporary
storefront or barricade.
INSUPJ~NCES: Tenant shall secure, %pay for and
maintain, or cause its contractor(s) to secure, pay
for and maintain, as the case may be, during the
continuance of construction and fixturing work
within the leased premises, Workman Compensation
Employers Liability Insurance; Comprehensive
General Liability Insurance (including Contractors
Protective Liability); Owner's Protective Liability
Insurance, insurin~ Tenant against any and all
liability to third parties for damage due to bodily
injury and property damage liability; and Tenant's
Builder's Risk Insurance; and statutory Automobile
Insurance.
Ail of the foregoin~ insurance policies shall be
with an insurance company approved by Landlord and
the insurance limits contained therein shall be
acceptable to Landlord. In addition, the aforesaid
Tenant's insurance policies shall name Landlord,
its Lender, its Architect and its General
Contractor as an additional insured and Tenant's
contractor shall deliver necessary evidence of all
of the foregoin~ policies to Landlord.
NO WORK SHALL BEGIN UNTIL ALL INSURANCE
CERTIFICATES ARE IN POSSESSION OF LANDLORD.
Each tenant shall be responsible for the cost of
delivery and arran~in~ all receipt and unloading of
all materials and equipment pertainin~ to his work.
CLEANING OF PREMISES: The Tenant shall, at all
times, keep the premises free from accumulations of
waste materials and/or rubbish caused by his
employees, workers, or contractors. Tenant shall
maintain the premises in a clean and orderly
condition durin~ construction and merchandising.
Tenant shall promptly remove all unused
construction materials, equipment, shipping
containers, packaging, debris, and flammable waste
from the Shopping Center. Tenant shall contain all
construction materials, equipment, fixtures,
merchandise, shipping containers and debris within
the premises. The common exterior areas of the
Shopping Center shall be clear of Tenant's
equipment, merchandise, fixtures, refuse and debris
at all times. Trash storage within the premises
shall be confined to covered metal contains. Tenant
is responsible for the removal of all trash and
debris from Tenant's premises.
6 o
CERTIFICATE OF OCCUPANCY: The Tenant shall
secure a Certificate of Occupancy from the
D-2
jurisdictional authorities in sufficient time to
allow Tenant to open the premises in accordance
with the opening requirements of this Lease. A copy
of the Certificate of Occupancy shall be forwarded
to the Landlord.
o
VIOLATIONS: In the event the Tenant is notified
of any violations of codes, ordinance regulations,
requirements or guidelines either by the
jurisdictional authorities or by the Landlord,
Tenant shall, at its expense, correct such
violations within seven (7) calendar days after
such notification.
o
ROOF OPENINGS: Any roof opening required by the
Tenant will be performed by Landlord's roofing
contractor at the Tenant's expense. Such openings
will include supporting structures, angles, curbs,
flashings, ducts, vents and grilles. Landlord may
refuse to approve any openings which, in Landlord's
judgement, exceed the capability of the structural
system.
LIENS: Tenant shall not permit any mechanic's
liens to attach to the leased premises or the
Shopping Center development in which the premises
are located on account of any labor or materials
furnished or supplied to the demised premises in
connection with Tenant's Work. In the event that
such a lien is attached, Tenant shall forthwith
cause the same to be discharged or in lieu thereof
furnish a bond for the benefit of Landlord issued
by a duly licensed surety company authorized to do
business in the state the project is located, which
by its terms indemnifies and holds the Landlord
harmless from the effects of such lien. In
addition, Tenant shall provide Landlord with final
waivers of lien, materialman certificates,
affidavits and sworn statements from all tenant's
contractors and suppliers within thirty days of
completion of work.
10. LANDLORD'S RIGHT OF ACCESS TO PREMISES: Landlord,
Landlord's agent, an independent contractor, or an
authorized utility company, as the case may be,
shall have the right, subject to Landlord's written
approval, to run utility lines, conduits or duct
work, where necessary or desirable, through ceiling
space, column space or other parts of the demised
premises and to repair, alter, replace or remove
the same, all in a manner which does not interfere
unnecessarily with Tenant's use thereof.
GENERAL WORK:
The Tenant will furnish and install the following items
of work at its sole cost and expense:
Interior partitions within the leased areas, except
for the toilet room walls.
Floor coverings.
Interior finishing of wall surfaces including
priming, painting, staining and wall coverings.
4 o
Display window backs, display window floor, display
window ceilings, and display window lighting
D-3
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o
fixtures and power for the same.
Install ceiling tiles.
PLUMBINg: Any plumbing facilities in excess
of that provided by the Landlord, such as increase
in size of service, drinking fountains, additional
toilet facilities, janitor's sink, hose bibbs, lab
sinks, special fixturing and outlets, will be
provided, installed and connected at Tenant's
expense. Tenant will also pay for any increases in
water and sewer capital charges or any other
related charges imposed by the municipality or
Landlord above the municipality's or Landlord's
standard charge for a retail store due to the
Tenant's use of the premises, i.e. restaurants,
beauty salon, etc. Tenant will provide fire
extinguishers as required by building code and
insurance underwriters.
HEATING, VENTILATING AND AIR CONDITIONING: Added
capacities to roof top HVAC units, if necessary,
shall be furnished and installed by the Tenant.
SPRINKLER WORK: Cost of additional pipe and heads
required as a result of interior store partitions,
mezzanine areas, unusual use of premises or tenant
fixtures will be charged to Tenant.
ELECTRICAL WORK: Tenant shall furnish, install and
pay for all electrical work other than items
furnished by Landlord, including but not limited
to:
a. Increased size of incoming electrical service
and panel.
b. Telephone and communication system.
c. Burglar alarms and/or warning systems.
d. Emergency generator.
e. Tenant's store signs and controlling time
clocks.
f. High voltage outlets.
g. Floor outlets.
h. Music systems.
i. Additional exit signs and emergency lighting
units necessitated by Tenant's fixtures and
interior partitions.
10. MISCELLAi~EOUS WORK:
so
Ail trade fixtures, cabinets, shelving,
counters, appliances, furniture, furnishings,
.etc., signs (interior and exterior) and other
personal property shall be new and of first
quality and shall be furnished and installed by
Tenant.
Toilet paper holders, soap dispensers, mirrors,
shelves, towel dispensers, etc. shall be
provided by the Tenant.
Tenant at his expense shall sound insulate, to
extent required by the nature of its business,
the demising walls so as not to permit sound to
emanate outside the premises.
11. SIGNS:
The Tenant shall furnish, install and
D-4
connect identification signs at locations provided
at canopy fascia at Tenant's expense.
Canopy fascia si~n design, lightin~ and si~n copy
color shall be subject to Landlord's approval.
Canopy signs shall be in conformance with the
detailed si~n criteria, as prepared by Landlord's
Architect.
Prior to fabrication, si~n plans and specifications
must be submitted for Landlord's approval.
D-5
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EXHIBIT "E"
RULES AND REGULATIONS
Landlord reserves the right to change from time to time the
format of the signs or lettering on the signs, and to require
replacement of any signs previously approved pursuant to
Section 16 to conform to Landlord's new standard sign criteria
established pursuant to any remodelin9 of the Shopping Center.
Tenant shall not, without the prior written consent of
Landlord (i) paint, decorate or make any changes to the store
front of the Premises; or (ii) install any exterior lighting,
awning or protrusions, signs, advertising matter, decoration
or painting visible from the exterior of the Premises or any
coverings on exterior windows and doors, excepting only
dignified displays of customary type in store windows. If
Landlord objects in writing to any of the foregoing, Tenant
shall immediately discontinue such use. ,
Tenant shall not (i) conduct or permit any fire, bankruptcy or
auction sale (whether real or fictitious) unless directed by
order of a court of competent jurisdiction, or conduct or
permit any legitimate or fictitious "Going Out of Business"
sale nor represent or advertise that it regularly or
customarily sells merchandise at "manufacturer's,,,
"distributor's", or "wholesale", "warehouse,,, or similar
prices or other than at "offprice" or at "retail,' prices; (ii)
use, or permit to be used, the malls or sidewalks adjacent to
such Premises, or any other area outside the Premises for
solicitation or for the sale or display.of any merchandise or
for any other business, occupation or undertaking, or for
outdoor public meetings, circus or other entertainment (except
for promotional activities in cooperation with the management
of the Shopping Center or an association of merchants within
the Shopping Center); (iii) use or permit to be used any sound
broadcasting or amplifying device which can be heard outside
of the Premises or any flickering lights; (iv) operate or
cause to be operated any video games or transportation
devices; or (v) use or permit to be used any portion of the
Premises for any unlawful purpose or use or permit the use of
any portion of the Premises as regular living quarters,
sleeping apartments or lodging rooms or for the conduct of any
manufacturing business.
Tenant shall at all times keep the Premises at a temperature
sufficiently high to prevent freezing of water, pipes and
fixtures. Tenant shall not, nor shall Tenant at any time,
permit any occupant of the Premises to: (i) use, operate or
maintain the Premises in such manner that any rates for any
insurance carried by Landlord, or the occupant of any premises
within the Shopping Center, shall thereby be increased; or
(ii) commit waste, perform any acts or carry on any practices
which may injure the Shopping Center or be a nuisance or
menace to other tenants in the Shopping Center.
Tenant shall not obstruct any sidewalks, passages, exits,
entrances, truck ways, loading docks, package pick-up
stations, pedestrian sidewalk and ramps, first aid and comfort
stations, or stairways of the Shopping Center. No tenant and
no employee or invitee of any tenant shall go upon the roof of
the Shopping Center without notifying the Landlord.
Landlord will furnish Tenant free of charge with two keys to
each door lock in the Premises. Landlord may make a reasonable
charge for any additional keys. Tenant, upon the termination
of its tenancy, shall deliver to Landlord the keys of all
doors which have been furnished to Tenant, and in the event of
loss of any keys so furnished, shall pay Landlord therefor.
E-1
o
10.
11.
12.
13.
14.
If Tenant requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain and comply with
Landlord's instructions in their installation.
Tenant shall not place a load upon any floor which exceeds the
designed load per square foot or the load permitted by law.
Landlord shall have the right to prescribe the weight, size
and position of all equipment, materials, furniture or other
property brought into the Premises. Heavy objects shall stand
on such platforms as determined by Landlord to be necessary to
properly distribute the weight. Business machines and
mechanical equipment belonging to Tenant which cause noise or
vibration that may be transmitted to the structure of Tenant's
store or to any other space to such a degree as to be
objectionable to Landlord or to any tenants shall be placed
and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other similar devices. The persons employed to
move equipment in or out of Tenant's store must be acceptable
to Landlord. Landlord will not be responsible for loss of, or
damage to, any equipment or other property from any cause, and
all damage done to the Shopping Center by maintaining or
moving such equipment or other property shall be repaired at
the expense of Tenant.
The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that
for which they were constructed. No foreign substance of any
kind whatsoever shall be thrown therein, and the expense of
any breakage, stoppage or damage resulting from the violation
of this rule shall be borne by the tenant who, or whose
employees or invitees, shall have caused it.
Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of
Tenant's store. Tenant shall not interfere with radio or
television broadcasting or reception from or in the Shopping
Center or elsewhere.
Except as approved by Landlord, Tenant shall not damage
partitions, woodwork or plaster or in any way deface the
Premises. Tenant shall not cut or bore holes for wires. Tenant
shall not affix any floor covering to the floor of the
Premises in any manner except as approved by Landlord. Tenant
shall repair any damage resultin~ from noncompliance with this
rule.
Tenant shall not install, maintain or operate upon the
Premises or in any Common Areas under the exclusive control of
Tenant any vending machine or video game without Landlord's
prior written consent.
Tenant shall store all its trash and ~arba~e in containers
within its Premises and/or in the portion of the Common Areas
designated by Landlord. Tenant shall not place in any trash
box or receptacle any material which cannot be disposed of in
the ordinary and customary manner of trash and ~arbage
disposal. All garbage and refuse disposal shall be made in
accordance with directions issued from time to time by
Landlord.
No cookin~ shall be done or permitted by Tenant on the
Premises without.Landlord's prior written consent, except for
brewing coffee and similar beverages and use of a sin~].e
microwave oven by employees only and in any event will not
permit odors to emanate from the Premises provided that such
use is in accordance with all applicable federal, state and
city laws, codes, ordinances, rules and regulations.
E~2
15.
Tenant shall not use in any space any hand trucks except those
equipped with rubber tires and side guards or such other
material-handling equipment as Landlord may approve. Tenant
shall not bring any other vehicles of any kind into Tenant's
store.
16.
Employees of Landlord shall not perform any work or do
anything outside of their regular duties unless under special
instructions from Landlord..
17.
18.
19.
20.
21.
22.
23.
Ail loading of goods shall be done only at such times, in the
areas, and through the entrances, designated for such purposes
by Landlord. The delivery or shipping of merchandise, supplies
and fixtures to and from the leased premises shall be subject
to such rules and regulations as in the judgment of the
Landlord, are necessary for the proper operation of the leased
premises or the Shopping Center.
Tenant and Tenant's employees shall park their cars only in
such portion of the parking area designated for those purposes
by the Landlord. Tenant shall furnish Landlord with state
automobile license numbers assigned to Tenant's employees
within five (5) days after taking possession of the premises
and shall thereafter notify the Landlord of any changes within
five (5) days after changes occur. In the event that the
Tenant or its employees fail to park their cars in designated
parking areas as aforesaid, then the landlord, at its option,
shall charge the Tenant Ten Dollars ($10.00) per day or
partial day per car parked in any area other than that
designated.
Landlord may waive any one or more of these Rules and
Regulations for the benefit of any particular tenant or
tenants, but no such waiver by Landlord shall be construed as
a waiver of such Rules and Regulations in favor of any other
tenant or tenants, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against any or all of
the tenants of the Shopping Center.
These Rules and Regulations are in addition to, and shall not
be construed to in any way modify or amend, in whole or in
part, the terms, covenants, agreements and conditions of any
lease of premises in the Shopping Center.
Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents., clients,
customers, invitees and guests.
Tenant shall use, at Tenant's cost, such pest extermination
contractor as Landlord may direct and at such intervals as
Landlord may require.
Trailers or trucks shall not be permitted to remain parked
overnight in any area of the Shopping Center, whether loaded,
unloaded or partially loaded. No parking shall be permitted of
any trailer, truck or other vehicle in any area of the
Shopping Center at any time for purposes of advertising or
promotion without Landlord's written permission.
Tenant agrees to comply with all additional and supplemental rules
and regulations upon notice of same from the Landlord.
E-3
EXHIBIT "F"
TENANT SIGN CRITERIA
GENERAL:
This exhibit is meant to outline the tenant sign criteria for the
Retail Shops at Hampden Centre Shopping Center, Mechanicsburg,
Pennsylvania. It is drafted as a guide to provide a consistent
graphic technique and may be amended or altered only with the
written consenf of Landlord. Tenants will be required to submit
detailed and dimensioned drawings indicating graphic content,
colors, script, construction and fasten'ing details and electrical
requirements to Landlord for review and approval prior to
fabrication and installation of any signs.
Do
The advertising content of all signs shall be limited to
letters designating the store name, or the type of store.
Tenants will not be permitted to indicate specific merchandise
sold (i.e. brand names etc.) specific ' '
, , services rendered
(i.e., "free gift wrapping,, etc.), or indicate any advertising
slogans (i.e., "The We Care People',, etc.).
Crests and corporate shield designs may be permitted, but,
must be submitted to the Landlord for approval for
compatibility of design intent with the sign criteria.
The location, character, design, color and layout of all signs
shall be subject to the approval of the landlord. Proper
consideration will be given to signs used by occupants for the
same or similar retail operations elsewhere.
No sign shall be placed in final position without written
approval of the Landlord.
Ail signs are to be fabricated and installed by a licensed
sign installer and shall be in compliance with all local,
state and national codes governing sign installation and shall
bear a U.L. label.
Tenant may install one identity sign on its service door with
maximum 2" high letters. Identity sign shall list place of
business as indicated on the tenant sign located on the sign
band and shall be "Helvetica Medium" all capital letters.
If any or all of the sign standard limitations as described
herein are found to be invalid under local sign and/or zoning
ordinances, regulations or law, to the extent, that such
limitations and restrictions, or any other ordinances,
regulations or law, is invalid as described, then the Landlord
may modify said limitations or restrictions to comply with
such local ordinance, regulation or law. In no event shall the
invalidity of any one of the limitations or restrictions be
deemed to invalidate the sign standard scheme as outlined.
SIGN REQUIREMENTS:
ao
So
Ail signage shall not exceed 60% of storefront length (see
attached Elevation Drawing - Appendix A) .
Maximum sign height is 36".
No sign shall exceed maximum brightness of 100 foot lamberts.
No fluorescent tubing, incandescent lamps, ballast boxes,
electrical transformers, crossovers, conduit or sign cabinets
shall be permitted.
No flashing, moving, flickering, or blinking illumination
shall be permitted.
F-1
No animation, moving lights, or floodlight illumination
shall be permitted.
The name and/or stamp of the sign contractor or sign company,
or both, shall not be exposed to view.
Signs, symbols, and/or trademarks must have a preliminary
approval by Landlord before shop drawings are executed.
One sign, or other graphic treatment, is allowed per
storefront elevation. Stores with two storefront elevations
may have a second sign with the written approval of the
Landlord. Such second signs ~hould maintain the same sign
message, graphic technique and design intent as the first
sign.
Signing is limited to trading name or logo onlyl
All signing must occur on the sign band unless otherwise
approved.
PROHIBITED SIGNS:
Color of raceway must match sign band color.
A. Paper signs, cardboard and hanging signs and/or stickers
utilized as signs.
Bo Signs of a temporary character or purpose, irrespective of the
composition of the sign or material used therefor.
C. Moving signs.
D. Pictures or paintings.
E. Box type signs or signs with formed plastic letters.
F. Advertising devices, slogans, merchandise or several listings.
G. Moving or rotating objects.
H. Back illuminated signs, "halo" effect letters.
I. Moving or flashing lights.
J. Painted on or luminous letters.
K. Cloth, wood, paper or cardboard.
L. Free standing signs or sandwich boards.
M. Noise making devices.
N. Boxes, cabinets, frames, transparent or translucent panels.
O. Rooftop signs or banners, except for those beneath canopy, as
approved by the Landlord.
Po Names of designer, manufacturer or installer.
Q. Any other signs, graphics or components which the Landlord
determines to distract from the overall center theme.
R. Individual dimensional wood, metal or plastic letters.
S. Formed plastic or injected molded plastic signs.
T. Projecting signs and banners.
U. Exposed neon tubing.
F-2
ILLUMINATED SIGNS:
no
Ail sign band identification signs to be internally channelled
letters with opaque metal sides and translucent acrylic face.
Letters shall be no more than 6" in depth and not less than 6"
high, with concealed ballasts. Letters must be installed on a
raceway. The color of the raceway must match the sign
band/facade.
S o
Exposed neon tubes forming letters or logos shall be used only
in decorative fashion and shall be allowed at the discretion
of the Landlord on an individual basis.
SIGN SPECIFICATIONS:
These specifications are meant to serve as performance standards
for tenant signage at the Shopping Center.
Wall mounted, internally illuminated siqn: Custom fabricated
aluminum plastic face, interior neon illumination, and individual
letters.
Depth of letters: Overall sign depth is 6".
Plastic face: As selected from stock colors connected to letters by
continuous aluminum retainer. Retainer ring size to be 3/8" x 1/2".
Letter stroke: Minimum 3".
Typoqraph¥: Ail standard letter styles are permitted per
attached sheet (see "Letter Styles" Appendix "B") .
Color: Permitted colors for illuminated signs are as follows:
1o Lettering to be standard colors as approved by Landlord.
2. Aluminum frames to match lettering color as approved by
Landlord.
Illumination: By two (2) neon tubes with standard ratings of 118
volts.
F-3
EXHIBIT "G"
LEASE GUARANTY
In consideration of the making of the lease agreement by and
between HAMPDEN CENTER, INC., as Landlord, and Q.J.J., Inc., as
Tenant, prepared August 14, 1998, for the premises commonly
described as Space D-9 Hampden Centre (hereinafter referred to as
the "Lease") and for the purpose of inducing Landlord to enter into
and make the Lease, the undersigned hereby unconditionally
guarantees the full and prompt payment of rent and all other sums
required to be paid by Tenant under the Lease ("Guaranteed
Payments") and the full and faithful performance of all terms,
conditions, covenants, obligations and agreements contained in the
Lease on the Tenant's part to be performed ("Guaranteed
Obligations") and the undersigned further promises to pay all of
Landlord's costs and expenses (including reasonable attorney's
fees) incurred in endeavoring to collect the Guarantee~ Payments or
to enforce the Guaranteed Obligations or incurred in enforcing this
guaranty as well as all damages which Landlord may suffer in
consequence of any default or breach under the Lease or this
guaranty.
1. Landlord may at any time and from time to time, without
notice to the undersigned, take any or all of the following actions
without affecting or impairing the liability and obligations of the
undersigned on this guaranty:
C o
grant an extension or extensions of time of
payment of any Guaranteed Payment or time for
performance of any Guaranteed Obligation;
grant an indulgence or indulgences ii1 any
Guaranteed Payment or in the Performance of any
Guaranteed Obligation;
modify or amend the Lease or any term thereof, or
any obligation of Tenant arising thereunder;
consent to any assignment or assignments,
sublease or subleases and successive assignments
or sublessees or a change or different use of the
leased premises;
so
f o
consent to an extension or extensions of the term
of the Lease;
accept other guarantors; and/or
release any person primarily or secondarily
liable.
The liability of the undersigned under this guaranty
shall in no way be affected or impaired by any failure or
delay in enforcing any Guaranteed Payment or Guaranteed
Obligation or this guaranty or any security therefor or
in exercising any right or power in respect thereto, or
by any compromise, waiver, settlement, change,
subordination, modification or disposition of any
Guaranteed Payment or Guaranteed Obligation or of any
security therefor. This is a guaranty of payment and
performance and not of collection. The liability of the
undersigned' under this guaranty shall be direct and
immediate and not conditional or contingent upon the
pursuit of any remedies against Tenant or any other party
or security.
2. The undersigned waives all diligence in collection or in
protection of any security, presentment, protest, demand, notice of
dishonor or default, notice of acceptance of this guaranty, notice
of any extensions granted or other action taken in reliance hereon
G-1
and all demands and notices of any kind in connection with this
guaranty or any Guaranteed Payment or Guaranteed Obligation.
3. The undersigned hereby acknowledges full and complete
notice and knowledge of all of the terms, conditions, covenants,
obligations and agreements of the Lease.
4. The payment by the undersigned of any amount pursuant to
this guaranty shall not in any way entitle the undersigned to any
right, title or interest (whether by subrogation or otherwise) of
the Tenant under the Lease or to any security being held for any
Guaranteed Payment or Guaranteed Obligation.
5. If Tenant fails to make such payments as provided above,
or if Tenant is otherwise in default under the Lease on said
termination date, this guaranty shall not terminate and shall be
continuing, absolute and unconditional and remain in null force and
effect until all Guaranteed Payments are made, all Guaranteed
Obligations are performed, and all obligations of the undersigned
under this guaranty are fulfilled.
6. This guaranty shall also bind the successors and assigns
of the undersigned and inure to the benefit of Lessor, its
successors and assigns. This guaranty shall be construed according
to the laws of the Commonwealth of Pennsylvania, in which state it
shall be performed by the undersigned.
7. If this guaranty is executed by more than one entity, all
singular nouns and verbs herein relating to the undersigned shall
include the plural number and the obligation of the several
guarantors shall be joint and several.
8. The Landlord and the undersigned intend arid believe that
each provision of this guaranty comports with all applicable law.
However, if any provision of this guaranty is found by a court to
be invalid for any reason, the parties intend that the remainder of
this guaranty shall continue in full force and effect and the
invalid provisions shall be construed as if they were not contained
herein.
IN WITNESS WHEREOF, intending to be legally boun~ h~r~y, the
undersigned has executed this guaranty this ~ day of A~1998.
Witn~§s
State of P~ R~9~l~/~a%~.
County of A~ ~
On this, the ~ day of A~u~t~ 1998, before me the
undersigned officer,-personally appeared ~e~; ~ ~ , known to
me, (or satisfactorily proven) to be th~ persons whose name is
subscribed to the within instrument, and acknowledge that he/she
executed the same for the purpose therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
Notary Public
Notre'iai Seal
Catharine M, Milson, Notary Public
Whitehall Twp., Lehigh County
My Commission Expires Jan. 25, 1999
Member, Pennsylvania Assodalkm of ~
G-2
VERIFICATION
I, David F. Lavipour, Vice President for Hampden Center,
Inc., being authorized to do so, verify that the statements in
the foregoing document are true and correct to the best of my
knowledge, information and belief.
I understand that any false statements herein are'made
subject to the penalties of 18 Pa.C.S.A. Section 4904, relating
to unsworn falsification to authorities.
Date:
Vice President
HAMPDEN CENTER, INC.,
Plaintiff
V.
JERRY SHIH,
Defendant,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:
:
NO. 02-765 CIVIL
:
:
: CIVIL ACTION
:
:
CERTIFICATE OF SERVIC~
I hereby certify that a copy of the foregoing has been duly
served upon the following, by depositing a copy of the same in
the United States Mail, first-class, postage prepaid, at
Harrisburg, Pennsylvania, as follows:
Ron S. Chima, Esquire
Eckert Seamans Cherin
& Mellott, LLC
213 Market Street
Eight Floor
Harrisburg, PA 17101-2132
Date: ~/3/~
M/rk W. All,houSe, Esquire
~19 Pine Stree~
~Harrisburg, PA 17101
(717) 236-5000
Attorney ID #78014
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
HAMPDEN CENTER, INC,
Plaintiff,
V.
JERRY SHiH,
Defendant
No.: 02-765 Civil
CIVIL ACTION
NOTICE TO PLEAD
TO:
Stephen C. Nudel, Esquire
Law Offices of Stephen C. Nudel, PC
219 Pine Street
Harrisburg, PA 17101
You are hereby notified to plead on behalf of Plaintiff to the New Matter contained
herein within twenty (20) days after service hereof, or a default judgment may be entered against
yOU.
Date: May ~_~, 2002
ECKERT SEAMANS CHERIN & MELLOTT, LLC
Ron ~. Chi~quire --
Supreme Ct. I.D. #81916
One South Market Square Building
213 Market Street, Eighth Floor
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant, Jerry Shih
L0249660.1}
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
HAMPDEN CENTER, INC, :
:
Plaintiff, :
:
JERRY SHIH, :
:
Defendant :
No.: 02-765 Civil
CIVIL ACTION
ANSWER TO AMENDED COMPLAINT WITH NEW MATTER
And Now, comes Defendant, Jerry Shih, by and through his attorneys, Eckert Seamans
Cherin & Mellott, LLC, and respectfully files the following Answer:
1. Admitted.
2. Admitted.
3. Denied. To the contrary, Defendant, Jerry Shih, maintains an address at 2000
McArthur Road, Whitehall, PA 18052
4. Denied as stated. The Agreement of Lease ("Lease") attached as Exhibit "A" to
Hampden Center, Inc.'s ("Hampden Center") Complaint filed with this Court is a written
document that speaks for itself and any characterization thereof by Hampden Center is expressly
denied.
5. Admitted.
COUNT I: BREACH OF LEASE
6. Defendant, Jerry Shih, hereby incorporates his responses to paragraph 1 through 5
as if set forth at length herein.
{L0251304.1}
7. Denied as stated. The Lease Guarantee ("Guarantee") dated September 2, 1998,
attached to the Lease is a document in writing that speaks for itself, and any characterization
thereof by Hampden Center is expressly denied.
8. Denied as stated. The Guarantee is a document in writing that speaks for itself,
and any characterization thereof by Hampden Center is expressly denied.
9. Denied as stated. The Guarantee is a document in writing that speaks for itself,
and any characterization thereof by Hampden Center is expressly denied.
10. Denied as stated. The Guarantee is a document in writing that speaks for itself,
and any characterization thereof by Hampden Center is expressly denied.
11. Denied as stated. The Guarantee is a document in writing that speaks for itself,
and any characterization thereof by Hampden Center is expressly denied.
12. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
13. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
14. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
15. The allegations of paragraph 13 of this Complaint contain conclusions of law to
which no response is required. To the extent that any response is required, the allegations are
denied generally pursuant to Pa. R. Civ. P. 1029(e).
16. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
17. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden center is expressly denied.
18. Defendant, Jerry Shih, is without knowledge or information sufficient to form a
belief as to the truth of these averments, and therefore they are denied and strict proof is
demanded.
19. Denied as stated. The Lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
20. Defendant, Jerry Shih, is without knowledge or information sufficient to form a
belief as to the truth of these averments, and therefore they are denied and strict proof is
demanded.
21. Defendant, Jerry Shih, is without knowledge or information sufficient to form a
belief as to the troth of these avem~ents, and therefore they are denied and strict proof is
demanded.
22. Defendant, Jerry Shih, is without knowledge or information sufficient to fomi a
belief as to the truth of these avem~ents, and therefore they are denied and strict proof is
demanded.
23.
belief as to the truth of these averments, and therefore they are denied and strict proof is
demanded
WHEREFORE, Defendant Jerry Shih, demands judgment in his favor and against
Plaintiff, Hampden Center, Inc.
Defendant, Jerry Shih, is without knowledge or information sufficient to foim a
COUNT II: HOLDOVER TENANCY
24. Defendant, Jerry Shih, hereby incorporates his responses to paragraphs 1 through
23 by reference as if set forth at length herein.
25. Defendant, Jerry Shih, is without knowledge or information sufficient to form a
belief as to the truth of these averments, and therefore they are denied and strict proof is
demanded.
26. Defendant, Jerry Shih, is without knowledge or information sufficient to fo,s~, a
belief as to the truth of these averments, and therefore they are denied and strict proof is
demanded. By way of further answer, the allegations of paragraph 26 of this Compliant contain
conclusions of law to which no response is required. To the extent that any response is required,
the allegations are denied generally pursuant to Pa. R. Civ. P. 1029 (e).
27. Denied as stated. The lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
28. Denied as stated. The lease is a document in writing that speaks for itself, and
any characterization thereof by Hampden Center is expressly denied.
29. Defendant, Jerry Shih, is without knowledge or information sufficient to foi~ii a
belief as to the truth of these averments, and therefore they are denied and strict proof is
demanded.
WHEREFORE, Defendant, Jerry Shih, demands judgment in his favor and against
Plaintiff, Hampden Center, Inc.
NEW MATTER
1. Hampden Center has failed to state upon which a relief may be granted.
2. Hampden Center's claims are or may be barred by the Doctrine of Laches.
Hampden Center's claims are barred by the Doctrine of Unclean Hands.
Hampden Center's are or may be barred by the statute of limitations.
Hampden Center's interpretation of the Lease and Guarantee upon which it bases
its claim for relief is without legal support, and as a matter of law it is unconscionable,
unreasonably overbroad, and ambiguous with respect to pertinent temts related to the leasing of
the property.
6. Hampden Center's lease terms have been voided by its counsel, Stephen C.
Nudel, through correspondence written to Defendant, Jerry Shih, on December 28, 2000,
wherein he indicated that the lease term expires in August, 2001. A tree and correct copy of the
December 28, 2001 correspondence is attached hereto as Exhibit "A".
7. Based upon the December 28, 2000 correspondence from Mr. Nudel, the
Defendant, Jerry Shih, formulated a business plan and used his best efforts to stay through the
end of the lease term which expired in August, 2001. See Exhibit "A".
8. Defendant, Jerry Shih, has a limited ability to understand English and relied on
Mr. Nudel's representations contained in the December 28, 2000 correspondence and stayed
through the lease term which expired in August, 2001.
9. As a result, Defendant Jerry Shih, was fully compliant with the terms of the lease
as dictated by Hampden center's counsel, Mr. Nudel.
10. The Guarantee referred to in Hampden Center's Complaint is neither valid nor
enforceable because due to his limited understanding of English, the Defendant, Jerry Shih, did
not know he had been requested to sign a personal guarantee.
11. Defendant, Jerry Shih, believed the Guarantee was part of the Lease and had he
been advised of the existence of the personal guarantee, he would not have signed said Lease.
12. The reference sheet that lists the lease terms does not specify any requirement of a
lease guarantee. See Lease attached to Hampden Center's Complaint as Exhibit "A".
13. The reference sheet to the Lease only lists a security deposit as security for the
lease.
14. The reference sheet, by its tea-ms, overrides anything in the Lease itself that
conflicts with the reference sheet.
15. If a personal guarantee were to be part of the security for the Lease, it should have
been listed as a term or part of the security.
WHEREFORE, Defendant, Jerry Shih, respectfully requests that this Honorable Court
enter judgment in his favor and order:
(a)
(b)
(c)
The Complaint be dismissed with prejudice;
That the Defendant be awarded his fees and costs, including
reasonable attorneys' fees and;
Such other and further relief that this Court deems appropriate.
Respectfully submitted,
ECKERT SEAMANS CHERIN & MELLOTT, LLC
Date:
Ron S. Chima, Esquire
Supreme Ct. I.D. #81916
213 Market Street
Eighth Floor
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant, Jerry Shih
6
I, lerry Shih, hereby verify and state that the facts set forth in the foregoing Answe~ to
Amended Complaint With New Matter arc true and con'cct to the best of my information,
lmowbxige and belief. I understand that false statements herein are mad~ subject W the
Densities of 18 Pa. C.S.A. Section 4904 ~eMtin$ to ullswom verification to authorities.
Date:
CERTIFICATE OF SERVICE
I, Ron S. Chima, Esquire, hereby certify that I am this day serving a copy of the
foregoing Answer to Amended Complaint With New Matter via first-class U.S. Mail upon the
person(s) and in the manner indicated, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure.
Stephen C. Nudel, Esquire
Law Offices of Stephen C. Nudel, PC
219 Pine Street
Harrisburg, PA 17101
Ron S. C~
Dated: May 23, 2002
{L0251304.1 }
HAMPDEN CENTER, INC.,
Plaintiff
V.
JERRY SHIH,
Defendant,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-765 CV
CIVIL ACTION
PLAINTIFF'S ~LY TO DEFENDANT'S NEW MATTER
AND NOW, comes Plaintiff, Hampden Center, Inc., by and
through its attorneys, Law Offices Stephen C. Nudel, PC, and
respectfully files the following Complaint:
1. Denied. The averment contained in paragraph i is a
conclusion of law to which no response is required.
2. Denied. The averment contained in paragraph 2 ~s a
conclusion of law to which no response ~s required.
3. Denied. The averment contained in paragraph 3 ms a
conclusion of law to which no response ~s required.
4. Denied. The averment contained in paragraph 4 is a
conclusion of law to which no response ms required.
5. Denied. The averment contained in paragraph 5 is a
conclusion of law to which no response is required.
6. Denied. The averment contained in paragraph 6 is a
conclusion of law to which no response ~s required.
7. Denied. After reasonable investigation, Plaintiff is
without belief or knowledge as to the truth or falsity of the
averment set forth in paragraph 7.
8. Denied. After reasonable investigation, Plaintiff is
Respectfully submitted,
LAW OFFICES STEPHEN C. NUDEL, PC
Date: 5/~
StShen C. Nudel,FEs~'
Attorney ID #41703
Mark W. Allshouse, Esquire
Attorney ID #78014
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for Defendant
VERIFICATION
I, David F. Lavipour, Vice President for Hampden Center,
Inc., being authorized to do so, verify that the statements in
the foregoing document are true and correct to the best of my
knowledge, information and belief.
I understand that any false statements herein are made
subject to the penalties of 18 Pa.C.S.A. Section 4904, relating
to unsworn falsification to authorities.
Date:
HAMPDEN CENTER,
Vice President
HAMPDEN CENTER, INC.,
Plaintiff
V.
JERRY SHIH,
Defendant,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 02-765 CV
: CIVIL ACTION
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly
served upon the following, by depositing a copy of the same in
the United States Mail, first-class, postage prepaid, at
Harrisburg, Pennsylvania, as follows:
Ron S. Chima, Esquire
Eckert Seamans Cherin
& Mellott, LLC
213 Market Street
Eight Floor
Harrisburg, PA 17101-2132
MaSk W. All~h0~, Esquire
219 Pine Streett
Harrisburg, PA 17101
(717) 236-5000
Attorney ID #78014
Attorney for Defendant
-..<
HAMPDEN CENTER, INC., :
:
Plaintiff :
:
V. :
:
JERRY SHIH, :
:
Defendant :
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO. 02-765 CV
CIVIL ACTION - LAW
PETITION FOR APPOINTmeNT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
Mark W. Allshouse, Esquire, counsel for Plaintiff in the
above captioned matter respectfully represents that: 1. The above captioned action is at issue.
2. The claim of Plaintiff in the action is $16,149.19 plus
costs and attorneys fees.
3. The following attorneys are interested in the case as
counsel or otherwise disqualified to sit as Arbitrators:
a) Mark W. Allshouse, Esquire, of the Law Offices of
Stephen C. Nudel, PC, 219 Pine Street, Harrisburg,
PA 17101; and
b) Ron S. Chima, Esquire, of Eckert Seamans Cherin
& Mellott, LLC, 213 Market Street, Eighth Floor,
Harrisburg, PA 17101-2132
WHEREFORE, Plaintiff respectfully requests the Honorable
Court to appoint three Arbitrators to whom the case shall be
submitted.
Respectfully submitted,
LAW OFFICES STEPHEN C. NUDEL, PC
St~hen C. Nudel,~Esquire
Attorney ID #41703
Mark W. Allshouse, Esquire
Attorney ID #78014
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for Plaintiff
HAMPDEN CENTER, INC.,
: IN THE COURT OF COMMON PLEAS
Plaintiff
:
V. :
:
JERRY SHIH, :
:
Defendant :
: CUMBERLAND COUNTY, PA
:
NO. 02-765 CV
CIVIL ACTION - LAW
CERTIFICATE OF SERVIC~
I hereby certify that a copy of the foregoing has been duly
served upon the following, by depositing a copy of the same in
the United States Mail, first-class, postage prepaid, at
Harrisburg, Pennsylvania, as follows:
Ron S. Chima, Esquire
Eckert Seamans Cherin & Mellott, LLC
213 market Street
Eighth Floor
Harrisburg, PA 17101-2132
Date:
a~k W.-All,house, ~squire
AWtorney ID #78014
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorney for Plaintiff
HAMPDEN CENTER, INC.,
Plaintiff :
:
V.
:
:
JERRY SHIH, :
:
Defendant :
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PA
NO. 02-765 CV
CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this~.5~day o~03' in consideration of the
foregoing Petition, ~~ ~
, Esq.
_~7~ <J~/~/~, Esq., and ~
~ A ,~ ~ ~~-.~~ , Esq. are
appo ted ro~trators in the above captioned matter as prayed
for. The Chai~an of the Board of Arbitrators should be
BY THE COURT:
: NO.
:
:
OATH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the
United States and the Constitution of this Common~harge the duties of
our office with fidelity.
AWARD
We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make
the following award:
(Note: If damages for delay are awarded, they shall be separately stated.)
· Arbitrator, dissents. (insert name if
' DateofHearing: Iq. t~Al~ '~:,"3 ~[ /2
Date of Award: I~-fl~Ol~ 212~'2~ ~ ~ ~ _~[~Ocz.O~
NOTICE OF ENTRY OF AWARD
Now, the /,~X. day of /t0~..~..,4' ,20t~, at I! :/~, tt~.M., the above award
! -
was entered upon the docket and notice thereof given{~= to the parties or(~ttomeys.
Artibitrators'compensation to be v ~a~_~n' ) _~_. ~
Paid upon appeal: Prothonotary t~7
$ 290.00 . ~
06/11/03 WED 09:11 FAX 717 240 657~ CI.'~B CO PROTIIONOT~RY ~002
IN TIlE COURT OF COMMON PLEAS
CUMBERLAND COUntrY, PENNSYLVANIA
NOTICE OF APPEAL
FROM AWARD OF BOARD OF ARBITRATORS
TO THE PROTHONOTARY:
from the award of the board of arbitrators entered in this case on
A jury trial is demanded ~. (Check box if a jury trial is demanded. Other
wise jury trial is waived.)
I hereby certify that:
1. The compensation of the arbitrators has been paid, or
2. Application has been make for permission to proceed in forma pauperis.
(Strike out the inapplicable clause)
NOTE:
Appell~t ~ttomcy~for App~llam
The demand for jury trial o~ appeal
from compulsory arbiiration is
govca'ned by Rule 1007.1
(b) No affidavit or verification is required.
Date: 6-11-2003
Dear Curtis
Since I
address to you in case
Jerry Shih
2000 Macarthur
Whitehall PA
'FEI.,: 610-439-8445
FAX: 610-776-1992
R Long:
am going to appeal by mysell: !
you want contact
Rd
18052
offer my
llle
Very Truly
Tha~!: You!
.Jerry Shih
TO: CURTIS R .LONO
DATE: 8/25/03
FROM: JERRY SHIH
Address: 3709 Aster ST
Allentown PA 18104
TEL: 484-6958983
CASE NO# 02-765 CIVIL
WHOM 1T MAY CONCERNED:
! decide to withdraw thc appeal wkick t send to you on
5/I 4/0':;.
Very truely
STEPHEN C. NUDEL
MARK W. ALLSHOUSE
STEPHEN C. NUDEL, PC
219 pine Street
(717) 236-50110
July 3, 2003
Mr. Jerry shih
176 shilow Court
Whitehall, PA 18052
Hampden Center, Inc.
v. Q.J-J-, Inc. t/a PC Warehouse
No. 01-6988; cumberland County
Dear Mr. shih:
The Arbitrator'S Award in the amount of $5,990.36 was
determined to be owed in addition to the $2,000 Security Deposit
retained by Landlord.
You are directed to immediately forward $2,000 to Hampden
Center, Inc. c/o Lavipour & Company, LLC, 444 Park Avenue South,
Suite 302, New York, New York 10016. Failure to do so within
ten (10) days of the date of this letter will result in further
legal action being taken to enforce the Arbitrator'S Award and
collect the $2,000 due and owing to my client.
Very truly yours,
rk W. All
MWA/kb
cc: Mr.
David F. Lavipour
STEPHEN C. NUDEL
MARK W. ALLSHOUSE
LAW OFFICES
STEPHEN C. NUDEL, PC
219 Pine S~et
Hamsburg. Pennsylvania 1'/101
(217) 236-5000
AuguSt 21,
2003
Mr. Jerry shih
3709 Aster Street
Allentown, PA 18104
Re:
Hampden Center, Inc.
v. Q.J.J., Inc. t/a PC Warehouse
No. 01-6988; cumberland County
Dear Mr. shih: in receipt of your recent payment of $2,000.00.
My client is that a balance of $1,300.00 remains due and
please be advised
owing for costS of suit and attorney'S fees in litigating this
matter- You are required to pay these costs pursuant to the lease
and lease guarantee.
tl owed will increase with each
~ ~ ~00 00 amount curren ~-~ ~nd attorney'S fees
additional filing as my ...... s
continue to accrue.
Kindly contact me upon receipt of this correspondence to
advise when my client may expect payment.
Very truly yourS,
W. Allsho~se
W A/bk
cc: Mr. David F. Lavipour
HAMPDEN CENTER, 1NC,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: No.: 02-765 Civil
V. :
JERRY SHIH, : CIVIL ACTION
Defendant :
RULE TO SHOW CAUSE
AND NOW, this __ day of ., 2003, upon consideration of the foregoing
Unopposed Petition ofRon S. Chima, Esquire, to Withdraw as Counsel for the Defendant, Jerry
Shih, Pursuant to Pa.R.Civ. P. 1012(b) IT IS HEREBY ORDERED that
(1) A Rule is issued upon the Defendant, Jerry Shih, to show cause why the
Petitioner, Ron S. Chima, Esquire, is not entitled to withdraw as Defendant's counsel pursuant to
Pa.R.Civ.P. 1012(b);
(2) the Defendant shall file an answer to the Petition within days of this
date;
(3)
(4)
(5) argument shall be held on __
County Courthouse; and
(6)
the Petition shall be decided under Pa.R.Civ. P. No. 206.7;
depositions shall be completed within __ days of this date;
., 2003 in Core,room __
of the Cumberland
notice of the entry of this Order shall be provided to all patties by the Petitioner.
BY THE COURT:
{L0268782.1 }
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
HAMPDEN CENTER, INC,
Plaintiff,
JERRY SHII-I,
Defendant
No.: 02-765 Civil
CIVIL ACTION
UNOPPOSED PETITION OF RON S. CHIMA, ESQUIRE, TO WITHDRAW AS
COUNSEL FOR THE DEFENDANT, JERRY SHIH,
PURSUANT TO Pa.R.Civ. P. 1012{b)
AND NOW COMES the Petitioner, Ron S. Chima, Esquire, to petition this Honorable
Court for leave to withdraw as counsel on behalf of the Defendant, Jerry Shih, in the above-
captioned case, and in support avers as follows:
1. This action was commenced by Complaint filed by Hampden Center, Inc.
("Hampden Center"), on February 12, 2002.
2. On April 2, 2002, the Petitioner entered his appearance on behalf of the
Defendant, Jerry Shih, and filed an Answer and New Matter in the above captioned matter.
3. Pursuant to an agreement of counsel for both pretties, this matter was listed for
compulsory arbitration.
On May 14, 2003, a hearing was held before a panel of Cumberland County
Arbitrators.
5.
On May 14, 2003, an award was entered by the .Arbitrators in favor of Hampden
Center, in the amount of $5,990.96, and against Jerry Shih ("~:bitrator's Award"). Hampden
Center's Amended Complaint of May 6, 2002 sought $10,814.98, plus interest, costs of suit and
attorneys' fees from Jerry Shih.
{L0268782.1 } 1
6. Even though the Arbitrator's Award was approximately half of the amount sought
by Hampden Center, Jerry Shih filed an appeal, pro se, to the Arbitrator's Award.
7. Jerry Shih did not consult with the Petitioner prior to filing the appeal to the
Arbitrator's Award.
8. The Petitioner promptly contacted Jerry Shih upon learning that Mr. Shih had
filed an appeal without consulting him. The Petitioner was infi)rmed by Mr. Shih that he did not
want the Petitioner representing him in the above captioned acti.on any further. Mr. Shih further
indicated that he did not want to spend any more money on legal fees, and, after participating in
the arbitration, he had learned how to handle the case himself.
9. The Petitioner advised Jerry Shih not to represent himself but, Mr. Shih insisted
that he no longer desired the Petitioner's legal representation.
10. On August 11, 2003, the Petitioner requested written permission from Jerry Shih
to withdraw as his counsel fi.om the above captioned action. Thereafter, on August 12, 2003,
Mr. Shih indicated his consent in writing to the Petitioner's withdrawal as counsel in this matter.
A copy of the Petitioner's request to withdraw as counsel and Mr. Shih's concurrence to the
withdrawal is attached hereto as Exhibit A.
11. The Petitioner requested and received concurrence to withdraw as Jerry Shih's
counsel in the above captioned action from counsel for Hampden Center, Mark Allhouse,
Esquire. This consent was obtained in accordance with C.C.,R.P. 206-2(c).
12. The Petitioner's request to withdraw as Jerry Shih 's counsel in this raatter is
unopposed.
{L0268782.1 } 2
13. There will be no prejudice to either party if the Petitioner is permitted to withdraw
at this juncture, and no part of the litigation will be delayed if Petitioner is permitted to withdraw
at this time.
14.
The Petitioner is requesting that the Court issue an Order permitting him to
withdraw as counsel, or alternatively, a Rule to Show Cause pursuant to Pa.R.Civ.P. 206.6.
WHEREFORE, the Petitioner, Ron S. Chima, Esquire,, respectfully requests that this
Honorable Court issue an Order granting him leave to withdraw as counsel on behalf of the
Defendant, Jerry Shih, in this matter. Alternatively, the Petitioner, Ron S. Chima, Esquire,
requests that the attached Rule to Show Cause be issued upon the Defendant, Jerry Shth, to show
cause why Petitioner's request to withdraw should not be granted.
Respectfully submitted,
Date: September 9, 2003
ECKERT SEAMANS CHERIN & MELLOTT, LLC
Ron S. ll~h~na, Esquire
Supreme Ct. I.D. #81916
213 Market Street
Eighth Floor
Harrisburg, PA 17101
(717) 237-6000
Attorneys for Defendant, Jerry Shih
{ L0268782.1 } 3
Exhibit A
Au~-1~-O3.09:39A P.01
ECKERT SEA.MANS CHERIN & MELLOTT, LLC
Phd,.h'll,b;.~
Aught 1 I, 2003
Mr, Jen'y Sttih
PC Warehouse
2000 Mncar~ur Road
WhilrllalI, PA 18052
Re:
t-lam~den Cent~ v. $~ry Shih
Cumbevlmad County Civil Act/o~ No. 02-765 Ci~/l
De~' ler~y:
i undo-trod that you would like mc to willglmw from ~he abovc-rei~renced matt=
as counsel. I will be happy to do so, but I require your consent. Therefore, please
sign below indicating your cons~t.
V~ry truly yours.
Ron S. Chima
P.~C: cle
L lerry Sh~ consent to &e wlthdr~wsl ot'Ron S. Chima as counsel in the ~bove-
re ferm~ce~d matter.
Sert~ Shi~) ~ ~ x Date
71Z237.60~
CERTIFICATE OF SERVIC_.E
I, Ron S. Chima, Esquire, hereby certify that I am this day serving a copy of the
foregoing Petition to Withdraw as Counsel via first-class U.S. lVlail upon the person(s) and in the
manner indicated, which service satisfies the requirements of the Pennsylvania Rules of Civil
Procedure.
Mark W. Allshouse, Esquire
Law Offices of Stephen C. Nudel, PC
219 Pine Street
Harrisburg, PA 17101
Jerry Shih
PC Warehouse
2000 Macarthur Road
Whitehall, PA 18052
Ron~. Chima~quire
Dated: September 9, 2003
{L0268782.1 }
SEP 1 1 ~§03 ~
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
HAMPDEN CENTER, INC,
Plaintiff,
JERRY SHIH,
Defendant
No.: 02-765 Civil
CIVIL ACTION
AND NOW, this, ~ day 3, in consideration of the attached
Unopposed Petition ofRon S. Chima, Esquire, to Withdraw as Counsel for the Defendant, Jerry
Shih, Pursuant to Pa.R.Civ.P. 1012(b),
IT IS HEREBY ORDERED that the Petitioner, Ron S. Chima, Esquire, be granted leave
to withdraw as counsel on behalf of Defendant, Jerry Shih, pursuant to Pa.R.Civ. P. 1012(b).
{L0268782.1 }