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HomeMy WebLinkAbout13-2258 Supreme Co. o ennsylvania COur O Co`► o leas For Profkonotary Use Only: t Docket No: 'j. CU Count3'J The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the and service of pleadings or other papers as required by lov or rules of court. Commencement of Action: S x Complaint 0 Writ of Summons © Petition Transfer from Another Jurisdiction [3 Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T Essam M. Haggag Shippensburg Marketplace, LP . Dollar Amount Requested: within arbitration limits I Are money damages requested? Yes No (check one) ®outside arbitration limits O N . Is this a Class Action Suit? ® Yes El No Is this an MDJAppeal? ©Yes 0 No .4 Name of Plaintiff /Appellant's Attorney: Richard H. Wix, Esquire 0 Check here if you have no attorney (are a Self - Represented (Pro Sel Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARYCASE.', If you are making more than one type of claim, check the one that you;consider most important. ' TORT (do not include Mass, Tort) CONTRACT (do not include Judgments) CIVIL APPEALS r .;?.:•< 13 Intentional n Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution E3 Debt Collection: Credit Card Board of Assessment a Motor Vehicle ® Debt Collection: Other Board of Elections Nuisance [3 Dept. of Transportation ' Premises Liability [3 Statutory Appeal: Other y S Product Liability (does not include mass tort) ® Employment Dispute: - � Slander/Libel/ Defamation Discrimination C ® Other: Employment Dispute: Other ® Zoning Board Other: .I'. l3 Other: "co- MASS TORT A s b estos -: Tobacco Toxic Tort - DES Q Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS Toxic Waste Other: Ejectment Common Law /Statutory Arbitration `: B ❑ Eminent Domain /Condemnation ® Declaratory Judgment 0 Ground Rent [3 Mandamus I El Landlord /Tenant Dispute 0 Non- Domestic Relations E] Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY Q Mortgage Foreclosure: Commercial 0 Quo Warranto ! 0 Dental Partition l Replevin Legal Quiet Title 0 Other: l [3 Medical ® Other: Other Professional: Updated 1/1/2011 fit, E OF i sl: PR0TJj0110TAp,y ? ';k R ?5 AN fib: t 4 C(liMBERLA�J!U COUNTY ESSAM M. HAGGAG, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. SHIPPENSBURG MARKETPLACE, CIVIL DIVISON — LAW LP, Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU MAY GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990 -9108 � `k Q a ikoyq Zap NOTICIA LE HAN DEMANDADO A USTED EN LA C,ORTE. Si usted quiere 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 o en persona o por abogado y archivar en la corte en forma escrita sus defensas o 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 o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. BEDFORD STREET CARLISLE, PA 17013 (800) 990 -9108 ESSAM M. HAGGAG, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. SHIPPENSBURG MARKETPLACE, CIVIL DIVISON — LAW LP, Defendant JURY TRIAL DEMANDED COMPLAINT 1. The Plaintiff is an adult individual residing at 27 North Center Street, Cleona, Pennsylvania 17042. 2. The Defendant is a Limited Partnership having offices at 3060 Peachtree Road, Suite 1545, Atlanta, Georgia 30305, who at all times relevant hereto, operated Shippensburg Marketplace. 3. On or about August 10, 2011, Plaintiff and Defendant entered into a Lease Agreement whereby Plaintiff leased 5,000. square feet of property owned by the Defendant for purposes of operating a restaurant. A copy of the Lease Agreement is attached hereto as Exhibit "A" and incorporated herein by reference. 4. Prior to opening the restaurant for business, Plaintiff invested approximately One Hundred Thirty Thousand and 00 /100 ($130,000.00) Dollars for alterations and equipment. 5. In or about January 2013 Plaintiff entered into discussions with the Defendant about the renegotiation of the Lease terms. 6. Plaintiff indicated to the Defendant that he had two (2) alternatives with regard to the Lease: (1) would be to file for reorganization under the Bankruptcy Law provisions; or (2) sublet the premises to a third party. 7. Defendant orally agreed to have the premises subletted, and in fact the Defendant entered into a Lease Agreement with GNC Corporation for a portion of the 5,000 square feet that was already leased to the Plaintiff. 8. Prior to April 6, 2013, Defendant had also agreed that they would allow Yasser El Hewarry to assume the Lease for the remaining space not leased by GNC Corporation, and that Plaintiff would thereby be released from any further liability for rent on the premises. 9. Based upon the above representations made by the Defendant, Plaintiff suspended operations of his restaurant. 10. After suspension of his business for awhile, Plaintiff was advised by Defendant that it was not going to enter into the Lease Agreement with Yasser El Hewarry. 11. After receiving this news from the Defendant, Plaintiff decided to reopen his restaurant. 12. On or about April 6, 2013, Defendant without prior notice and without any legal authority to do so locked the Plaintiff out of the restaurant. 13. The Defendant took the unlawful action of locking the Plaintiff out of the leased premises without due process of law because of the fact that on or about April 4, 2 2013, Plaintiff had advised Defendant that one alternative that he had for continued operation of the restaurant was to file for reorganization under the United States Bankruptcy Law. 14. Solely as a result of the wrongful actions of the Defendant, Plaintiff has sustained various losses, including: a) Loss of his investment in the business; b) Loss of profits; C) Loss of future profits; d) Damage to his reputation; e) Loss of his property; and f) Mental distress and suffering COUNT 15. Plaintiff incorporates herein by reference paragraphs 1 through 14 of this Complaint. 16. The actions taken by Defendant in locking Plaintiff out of the restaurant were in violation of the Pennsylvania Landlord and Tenant Act. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $50,000.00. COUNT II 17.' Plaintiff incorporates herein by reference paragraphs 1 through 16 of this Complaint. 3 18. The actions of the Defendant were intentional and constitute the intentional infliction of mental distress. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $50,000.00. COUNT III 19. Plaintiff incorporates herein by reference paragraphs 1 through 18 of this Complaint. 20. The actions of the Defendant in illegally locking Plaintiff out of the restaurant constitute a breach of contract for which Defendant remains liable for damages. WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $50,000.00. COUNT IV Fraudulent Misrepresentation 21. Plaintiff incorporates herein by reference paragraphs 1 through 20 of this Complaint. 22. The Defendant intentionally misrepresented to Plaintiff that they would agree to the assignment of the Lease to other parties with the intention of wrongfully evicting Plaintiff from the premises without following the Landlord Tenant Act in order to prevent Plaintiff from filing for reorganization under the Federal Bankruptcy laws. 4 WHEREFORE, Plaintiff demands judgment against the Defendant in an amount in excess of $50,000.00. Respectfully Submitted, WIX, WENGER & WEIDNER 13y ', k , 2 4 -) �, �, Richard H. Wix, Esq., ID #07274 .4705 Duke Street Harrisburg, PA 17109 -3041 (717) 652 -8455 Counsel for Plaintiff Date: Y I3 5 VERIFICATION I, Essam M. Haggag, have read the foregoing Complaint which has been drafted by my counsel. The factual statements and /or denials contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this verification. This verification is made only as to the factual averments contained therein and not to legal conclusions and averments authorized by counsel in his capacity as attorney for the party or parties hereto. This verification is made subject to the penalties of 18 PA. C.S. Section 4904, relating to unsworn falsification to authorities, which provides that if I knowingly made false averments, I may be subject to criminal penalties. Date: Ala 5113 Essam M. Hagga �� , LEASE AGREEMENT LANDLORD: Shippensburg Marketplace, LP TENANT: Sam Haggag d/b /a ,SH M ' S D ! nl e:R PROJECT: Shippensburg Marketplace ARTICLE I: GRANT AND BASIC TERMS 1.01 Basic Terms and Definitions ........ ..............................1 1.02 Use of Common Areas ............... ..............................2 1.03 Commencement of Rental and Other Charges ..................2 1.04 Length of Term........ .......... ............................... <.....2 1.05 Condition of Leased Premises ...... ..............................3 1.06 Tenant's Work ........................ ........:.....................3 1.07 Shopping Center Provisions ........ ..............................3 ARTICLE H: RENT 2.01 Minimum Annual Rent .............. ..............................3 2.02 Percentage Rent ....................... ..............................4 2.03 Gross Receipts Defined ............. ..............................4 2.04 Tenant's Records ..................... ..............................4 2.05 Audit ........:.......................... ..............................5 2.06 Taxes and Insurance ................. ..............................5 2.07 Interest on Delinquent Rent ......... ..............................6 ARTICLE III: CLEANING AND REPAIR OF LEASE PREMISES 3.01 Landlord's Obligation ............ ..............................6 ARTICLE IV: CONDUCT OF BUSINESS 4.01 Use of Premises ...................... ..............................6 4.02 Operation of Business ............... ..............................6 ARTICLE V: COMMON USE FACILITIES 5.01 Control of Common Facilities by Landlord ..................7 5.02 Common Facilities Contribution ... ..............................7 5.03 Definitions ............................ ..............................7 ARTICLE VI: ALTERATIONS, LIENS & SIGNS 6.01 Alterations ............................ ..............................8 6.02 Tenant Shall Discharge All Liens .............................8 6.03 Signs, Awnings Canopies ...... ..............................8 ARTICLE VII: MAINTENANCE OF LEASED PREMISES, SURRENDER AND RULES 7.01 Maintenance, Repair, and Replacement by Tenant ............ 9 7.02 Maintenance by Landlord ........... ..............................9 7.03 Surrender of Premises ................ ..............................9 7.04 Rules and Regulations .............. .............................10 ARTICLE VIII: INSURANCE AND INDEMNITY 8.01 Casualty Insurance ................. ............................:11 8.02 Waiver of Subrogation ............ ..............................1 l 8.03 Increase in Fire Insurance Premiums .......................... 11 8.04 Liability Insurance ................. ............................... 11 8.05 Indemnification of Landlord ..... ..............................1 l 8:06 Plate Glass Insurance .............. .............................12 8.07 Liquor Liability Insurance .......... .............................12 8.08 Insurance Policy ................... .............................12 08/09/11 Exhibit "A" i Landlo Tenant VP DRAFT 8/2/11 ARTICLE IX: UTILITIES 9.01 Utility Charges ....................... .............................12 ARTICLE X: PRIORITY OF LEASE 10.01 Subordination ....................... .............................12 10.02 Notice to Landlord of Default . .............................13 10.03 Estoppel Certificate ................ .............................13 10.04 Attornment .......................... .............................13 ARTICLE XI: ASSIGNMENT AND SUBLETTING 11.01 Consent Required .................. .............................14 ARTICLE XH: WASTE, GOVERNMENTAL AND INSURANCE REQUIREMENTS, AND HAZARDOUS SUBSTANCES 12.01 Waste or Nuisance ................. .............................14 12.02 Governmental and Insurance Requirements .................14 12.03 Hazardous Substances ............. .............................14 ARTICLE XIII: DESTRUCTION OF LEASED PRENHSES 13.01 Partial Destruction ................ .............................15 13.02 Substantial Destruction ........... .............................15 13.03 Partial Destruction of Shopping Center .....................16 ARTICLE XIV: EMINENT DOMAIN ..14.01 Condemnation ...................... .............................16 ARTICLE XV: DEFAULT OF TENANT 15.01 Default ............................... .............................16 15.02 Remedies ............................ .............................17 15.03 Legal Expenses ..................... .............................18 15.04 Failure to Pay; Interest .......... .............................19 ARTICLE XVI: ACCESS BY LANDLORD 16.01 Right of Entry ...................... .............................19 ARTICLE XVH: TENANT'S PROPERTY 17.01 Taxes on Leasehold ................ .............................19 17.02 Loss and Danger .................... .............................19 17.03 Notice by Landlord ................ .............................19 ARTICLE XVHI: HOLDING OVER SUCCESSORS 18.01 Holding Over ....................... .............................20 18.02 Successors and Assigns ........... .............................20 ARTICLE XIX: QUIET ENJOYMENT 19.01 Landlord's Covenant .............. .............................20 ARTICLE XX: MISCELLANEOUS 20.01 Waiver ............................... .............................20 20.02 Accord and Satisfaction ........... .............................20 20.03 No Partnership ...................... .............................20 20.04 Force Majeure ....................... .............................20 20.05 Landlord's Liability ................ .............................20 20.06 Notices and Payments .............. .............................21 20.07 Financial Statements ................ .............................21 20.08 Guarantors ........................... .............................21 20.09 Captions and Section Numbers ... .............................21 08/09/11 - ii Landlord Tenant DRAFT 8/2/11 20. 10 Definitions. ..................................................... 21 20.11 Partial Invalidity ................... .............................21 20.12 Recording ......................... .............................21 20.13 Entire Agreement ................... .............................22 20.14 Jury Trial; Claims; Survival ...... .:...........................22 20.15 Applicable Law .................. .............................22 20.16 Consents and Approvals .......... .............................22 20.17 Authority ............................ .............................22 20.18 Interpretation ........................ .............................23 20.19 Brokers ............................ .............................23 20.20 Mutual Release ..................... .............................23 20.21 Transfer of Tenant ................. .............................23 20.22 Exhibits .............................. .............................24 ARTICLE XXI: SECURITY DEPOSITS 21.01 Amount of Security Deposit ....... .............................24 21.02 Use and Return of Security Deposit .......:..................24 ARTICLE XXII: TENANT COVENANTS; EASEMENTS; DATE OF LEASE 22.01 Tenant Covenants .................. .............................24 22.02 Easements ........................... .............................24 ARTICLE XXIII: ADA COMPLIANCE 23.01 Americans with Disabilities Act . .............................24 EXHIBITS: Rider Site Plan Exhibit A Legal Description Exhibit Al Description of Landlord's Work and Tenant's Work Exhibit B Guaranty Exhibit C Exclusives Exhibit D Sign Criteria Exhibit E 08/09/11 iii Landlord Tenant -fb DRAFT 8/2/11 LEASE AGREEMENT THIS LEASE AGREEMENT (the "Lease ") is entered into pursuant to the following terms and conditions: ARTICLE I: GRANT AND BASIC TERMS 1.01 Basic Terms and Definitions. This Lease is subject to the following basic terms and definitions: a) Date of Lease: date of Landlord execution. b) Landlord: Shippensburg Marketplace, LP Address: 3060 Peachtree Rd., Suite 1545, Atlanta, GA 30305 c) Tenant: Sam Haggag d/b /a SFM � 5 7,.-1E9 Address: 27 North Center Street, Lebanon, PA 17042 d) Shopping Center: Shippensburg Marketplace Address: 397 Baltimore Road, Shippensburg, PA 17257 e) Tenant's Leased Premises: Shop A containing 5,000 square feet. Shop address: 397A Baltimore Road, Shippensburg, PA 17257 f) Original Term: 10 years (See Section 1.04) Option period: 1 additional term of 5 years (see Rider) g) Commencement Date: December 1, 2011 (see Section 1.03) h) Fixed Fixed Minimum Rent: (See Section 2.01) 1) Years 1 to 5: $ 45,000.00 annually; $ 3,750.00 monthly; $9.00 per square foot. 2) Year 6: $ 55,000.00 annually; $ 4,583.33 monthly; $ 11.00 per square foot. 3) Year 7: $ 57,000.00 annually; $ 4,750.00 monthly; $ 11.40 per square foot. 4) Year 8: $ 59.000.00 annually; $ 4,916.67 monthly; $ 11.80 per square foot. 5) Year 9: $ 61,000.00 annually; $ 5,083.33 monthly; $ 12.20 per square foot. 6) Year 10: $ 63.000.00 annually; $ 5,250.00 monthly; $ 12.60 per square foot. Option Additional Term # 1 7) Years 11 to 15: $ 75,000.00 annually; $ 6,250.00 monthly; $ 15.00 per square foot. i) Percentage Rent: 0% of gross receipts in excess of $ (See Section 2.02) j) Use of Leased Premises: Diner -style Restaurant r k) Trade Name of Tenant: S CR M S 1 N cp, 1) Security Deposit: $3,541.67, paid at execution of Lease Agreement (See Section 21.01) 08/09/11 1 Landlo Tenant DRAFT 8/2/11 m) Estimated Additional Rent for current calendar year, based upon Tenant's pro rata share of the Shopping Center. Annual Amount eP r S.F. Monthly Taxes (See Section 2.06) $1.30 $541.67 Insurance (See Section 2.06) $0.75 $312.50 Common Area Operating Costs (See Section 5.02) $1.20 $500.00 n) Condition of Leased Premises (See Section 1.05): Tenant will take "as is" X or upon substantial completion of Landlord's Work described on Exhibit B o) Guarantor(s): N /A" P) Riders: Riders consisting of a total of one W page is attached to this Lease and incorporated herein. Landlord demises and leases to Tenant, and Tenant rents from Landlord the Leased Premises outlined on Exhibit "A ". The legal description of the real estate on which the Leased Premises are situated is attached as Exhibit "Al ". 1.02 Use of Common Areas The use and occupation by Tenant of the Leased Premises shall include the use, in common with others entitled thereto, of the common areas, employees' parking areas, service roads, loading facilities, sidewalks and customer car parking areas of the Shopping Center, and such other facilities as may be designated from time to time by Landlord, subject, however, to the terms and conditions of this Lease. Landlord may designate certain portions of the parking areas as reserved for use of certain Tenants or customers of certain Tenants. All parking rights are also subject to ordinances of the City. 1.03 Commencement of Rental and Additional Rent Tenant's obligation to pay Fixed Minimum Rent and Additional Rent due hereunder shall commence on December 1, 2011. Tenant, prior to the commencement of the term, shall with the prior consent of Landlord be permitted to install fixtures and equipment, and the date that Tenant takes possession of the Leased Premises for such purpose is hereby referred to as the "Possession Date." Tenant shall observe and perform all of its obligations under this Lease, from the Possession Date until the Commencement Date, in the same manner as though the term of this Lease had begun on the Possession Date. Any work done by Tenant prior to completion of the Leased Premises shall be done in a manner as will not interfere with the progress of the work by Landlord of completing construction, and Landlord shall have no liability or responsibility for loss of or any damage to fixtures, equipment or other property of Tenant so installed or placed on the Leased Premises. 1.04 Lensth of Term The term of this Lease shall be asset forth in Section 1.01(f), commencing with the Commencement Date determined in accordance with Section 1.03 hereof, if said date shall occur on the first day of a calendar month. If the Commencement Date is other than the first day of the month, the first year of the lease term shall be deemed to be extended to include such partial month and the following twelve (12) months, so as to end on the last day of the month. 1.05 Conditions of Leased Premises If Tenant is to take the Leased Premises "as is" pursuant to Section 1.01(n), Landlord shall have no obligation to prepare the Leased Premises for Tenant's use and there shall be no Landlord's Work. If Tenant is not taking the Leased Premises "as is" pursuant to Section 1.01(n), Landlord agrees at its cost and expense to complete Landlord's Work and to deliver possession of the Leased Premises to Tenant in a substantially completed condition (as defined in Section 1.03) on or before December 1, 2011; provided, however, that in the event Landlord's Work is delayed or hindered by strike, casualty, fire, injunction, inability to secure materials or 08108111 2 Landlo Tenant DRAFT 8/2/11 permits, or restraint of law, unusual action of the elements, or any other cause beyond the control of Landlord, then the said period shall be extended to the extent of such delays. If Landlord fails to complete Landlord's Work including any extensions as herein provided or which may be agreed to by the parties within six (6) months from the date of this Lease, then Tenant shall have the option of canceling and terminating this Lease by giving notice in.writing to Landlord. 1.06 Tenant's Work Other than Landlord's Work, Tenant shall make all other necessary improvements to the Leased Premises to operate Tenant's business ( "Tenant's Work"). Tenant's Work shall comply with all applicable statutes, ordinances, regulations, and codes and shall strictly comply with the requirements of Article VI hereof. Tenant may not puncture the roof or interfere with the sprinkler system without specific written permission from Landlord. 1.07 Shopping Center Provisions. No rights or remedies shall accrue to Tenant arising out of the failure of Landlord to construct or Lease any other parts of the Shopping Center or from any changes in occupancy by Tenants in the Shopping Center. It is understood that said Exhibit "A" sets forth the general layout of the Shopping Center but shall not be deemed as a warranty, representation or agreement on the part of Landlord that the Shopping Center layout will be exactly as depicted on said Exhibit, and Landlord specifically reserves the right from time to time and without the consent of Tenant: (i) to change the number, size, height (including additional stories) or locations of the buildings or common areas in the Shopping Center as Landlord may deem proper; (ii) to change or modify any means of ingress or egress; (iii) to construct building(s) and/or kiosk(s) on or in the common areas; or (iv) to add additional land or buildings or both to the Shopping Center. Notwithstanding the foregoing, the Leased Premises will not be altered, relocated, or the visibility thereof impaired by addition of stories or buildings. ARTICLE II: RENT 2.01 Fixed Minimum and Additional Rent Fixed Minimum Rent and Additional Rent shall be as set forth in Sections 1.01(h) and 1.01 (m) respectively, and shall be payable in monthly installments in advance, without set off, on the first day of each and every month throughout the Lease term at the office of Landlord or at such other place designated by Landlord, without any prior demand. Fixed Minimum Rent and Additional Rent for any fractional month shall be prorated and payable in advance. For purposes of this Lease, the gross leasable area of the Leased Premises shall be deemed to be that set forth in Section 1.01(e). e beat In ddi e.. the h « F the R . saaicxoxrcoz �wTmcaz�� + rmc Fixed �-�y Additional ET eat as here be €er-e- provided, Tenant sha4Ipay to Landlord fer- easy applicable f er- ..e..«' 1 L (i A..«« any renewed +_fm) as n_____.___ rr Y , Rent a sum e qu i v ale nt the ameu if by ..L:eL the fe in S eetien 1 F +1- b• r + > h ere i na f te r - de fi t, ea a b r-ea 4 eipA . i €e£th in Seetien 101(i). With €efty five (45) days the , F eaeh Lease Ve during the «e..... 1 e..eef Te s wan f -ti +e 7 andle_d a _L_- -_-- i n -'_ de +ea as T an dle r d ..1..41 m no bl y r-e R .. a > ., .. the « eF b Y « f er- sue L ease Year and the auth 1 ,1 d e d tie fi eF6 the re[ eentempefaneetis vA4 deli - statement Tenant sha pay to T an d/ a an ameun4 equa te any yereentage Rant "e xf said Lease Year-. The teE m "Lease - Year," as used hpn.,in, gz l r,efe.. to a el. el a d _d, g the le ase +e 1... r the r._ a nd 1__. _r the term sM1 mean the paFfial ealeadar- year- appheable to eaeh, and fer- any sueh par-ti-al years, the Per-eentage RePA br-eakpeifft shall be pr-epei4ioneAely adjusted based Upell the length of the pal4ial yeaan Tenan s tatement of gr oss « s h a ll b ..+'F a (in f e m aeeeptable to T al d) un der- +ti, b T .l pres t f 1 cc er- r Defined. The teem "gross reeeipts " as used her-ei* is de€ined-te 08109111 3 Landlo Tenant. DRAFT 8/2/11 and sebles.1 es of Te nant G it b us i ness een u .. G 4he Le e d D > /. dl F het « the s .al+ r tl + Y J - e pts a ell b a ede ,«e,. }�e�SenS 't1.' 41+e„t the Le ed D« a nd i at:. eF ..l.etl.e ql r-eeeipts be evideneed by er- > r rhaE > e t 1, 11 1 d 4h a G t al 0 1.,, et l.e e e e o -+ r - «e 1' 't d to, L ame -s t s feee f rem h 1 d .. tel of e eda e _ fne a s h e lf an n r + gif eart:fi a Fe.- se a a nd r -epa i r-s pelf ...,..ed a G th L ease d P f-em i ses, 4 the 'tl. the a +..t eF all enders W o .e et a the L ease d D w t a t, f tt .+.l. er- G elseem a n d shall > 1 d s a b v e nding G de:ees :., the L eased Dre+,.,:ses Gress re r, a ts +. "I a l 1 d i, t t b e li m it e d s + 11 d r .., '4 4 eaded to .. chasers and all > 1 t 1 t f T ena nt . G Tess « e pts sh .. er- ll not :el+,de /e« if : «eluded Y y ees � s h a ll b a s t o th G \ eas er-e a,..ds up a 4.. w he r e t h e er- 1. d• la oF sefae rt f it +, tmea 1.+ the p w eh aser- to a nd „tea 1.. r T enan t th e sa .. ,+ f - eha mtme 1.+. ., +st .. . s f,.« e mela .idea > Y th th sa i ee 1. d' deli to the a .ste...e i - el.a shell be r sales use, impesed by any > state, 1 d it t d G t >r t. idea tet the a «t the is billed a mt 1+ t th t d r-equ 4 b Y t 1 p aid 1.... Tenant to s .eh _geyen l. e a l.T 1+' G ' t l. e to a nd t.. n er: a r ..tie :lar to + li eense f ee b ase d Y e saes a r r refits + t, shall .e shall beded ,« .» Go e l r 2.04 T enant's R eeerd9 > th puTe of a eeAak.:.,a a the a rA . re+ .el.le Der-ee lucent, Tenant agrees te- prepare, mak 4 a i m, d scive en the Leased T e D F y a i � d eF n ot less tha d /2\_�.ear F „+ lle n the e of eaeh Le e Yea£, sal a s i nven t e fi es a t o f hand: at the Le ea D d d '1 t G ll We a a nd ether m. t, etie n the Le as ed ed D+.e e J r d a d t d b y Tenant a all other p e r-seas +. « fi..,s a n d u eti ng e . b b ~ J ope said prer.ao v Tenant shall £eeer-d at the tkne e€ sale, in 4h «mse _ef_the eus • r a ll 4 G 1 ether 4w saot:ens w etl.e« F « easi. a red:4 i eas re 1. to ha ,lat:+ a }eta + . shall b elect in mannef b• a YY d b y i al d > e a ,d ha s +el, 1, e4er F ++r ates as shall l be a pprov ed * ,1 bandl T t o rtw a gF e es t k .+ the Le sea Dre+n +s s c r at least 4«ee /Z\ years felle! ' A ' 413g the end ef aBy paftial Lease Year- and eaeh Lease Year- the sa 4: t 'tl, t. « eet to sa :d r.art:al T e e Year an T e e Yea «s a Y s r r all peEtineat er-igknel sales feesr-ds De..t .,4 er i g i n e4 ale rds s h a ll el /a\ C as h fe t t a p es , 1 d: ^ a to re Go mre reg /4.\ a o1L nu mbe red - sa s li p s ; . 41. • 1 of all ...ail a « de «s et a to the L eased e...:ses. /e\ 4L,e a al b c a f all t «de at a nd to 41.e L Dr /d\ ea4e en t a e«t she- et—, ; F M t' 'tl. bt t d 1' ( th al d > th a t l, J t t ma :se «et..med b o +ste...ers was r fe h m ed at the Le so D b y ♦ J b t . > /41 ..+ .,d.+.... �r a «tae ether r ends e m e r - o h an di s e t 1 t YY \ 1 / b \ s ,el+ ether sales fe e«ds if a ny , w hiel+_ w „ld « ell+. be en / pe an au dit of Te «t>s sales. and ad /h\ the «eee s ee;f+ed i /a\ to /h\ ahe+.e of quhtpnAnt > > > ame unt e€ gereentage Re nt due, Te« «t a to Lee., all the fe«egeing eras + p A l sueh dispute is resolved. INS A-u-44. The aeeeptmee by Landlord ef payments ef Per-eentage Rent shall be ef ver-ifieatien. At its eptien, Landler-d may at a" r-easenable time, upon ten (10) day-9. prieF ,r: tte etio to Te ..late a udit to be made of Ten .,fir eevered by any statement- issued -by Tef as abeye et F._ tl TF a .el a udit shall d'selese l:aha :t.. F r Deme De..t to 4he te e€ e e /_LO%\ aZS�I VVC�s- rzav:xxsTzvrrcrvcasccgvzcczzrco u. c c ° 3ccc� v vzzc -pci :c-��. o� emsess of the «e the«etefere s ..,,ted and ..aid h.. Tenant Fe. s +eh ., ed if 08109111 4 Landlord Tenanti,,A) DRAFT 8/2111 r-eeeipts, Tenant shall pr-emptly pay te Landlord the maseftable eest ef said audit in additien to the e Feeeipts within seven (7) days aftef the. per-ied F�equked,_Landler-d may ehaFge-Tle� a at Landlord's eptien may teffninate d3is Lease upon five (§)-days�' 2.06 Taxes and Insurance Tenant shall pay to Landlord as Additional Rent its proportionate share of real estate taxes, special taxes and assessments and all insurance for the Shopping Center. Insurance shall include fire insurance, extended coverage and all other perils coverage, loss of rents coverage, plus all endorsements and other coverages deemed reasonable and necessary by Landlord. Landlord shall notify Tenant of the amount of such charges, and Tenant shall pay Landlord such amounts within thirty (30) days from the date of notice to it by Landlord. Tenant's proportionate share is the fraction, the numerator of which is the gross leasable area in the Leased Premises and the denominator of which is the total gross leasable area of the Shopping Center, provided that if the taxes for the Shopping Center are increased materially because of assessment of Tenant's improvements at a higher rate than other tenants in the Shopping Center, Tenant agrees to pay any such excess taxes. In the event, (i) any portion or portions of the Shopping Center are separately assessed, for purposes of Tenant's proportionate share, Tenant's proportionate share shall be the ratio of the gross leasable area of the Leased Premises to the gross leasable area of all buildings within the Shopping Center excluding, however, the gross leasable area of any buildings located in the particular separately assessed parcel (ii) any tenants are separately charged for or provide their own insurance, then the gross leasable area of that tenant's store shall not be included in the calculation of Tenant's proportionate share for said insurance. Landlord, at Landlord's option, may bill Tenant on a monthly basis based on one - twelfth (1/12) of the estimated annual amount for taxes and insurance as estimated by Landlord, and Tenant shall pay said cost for tax and insurance with the monthly Fixed Minimum Rent. The initial estimate shall be as set forth in Section 1.01(m). In the event Tenant does not make said payment monthly, Tenant shall be in default of this Lease. Landlord, at Landlord's option, may obtain separate taxable status for the Leased Premises, and in such event, Tenant's tax contribution shall be based thereon. Additionally, with respect to taxes: (a) Right To Contest Assessments Landlord may contest any and all such real estate taxes. If the result of any such contest shall be a reduction in the amount of the real estate taxes so contested, that portion of any refund, reduction, credit or recovery from the taxing authorities with respect to such real estate taxes, which is in the same proportion for the total refund or recovery as Tenant's share of taxes, shall belong to Tenant, and the balance shall belong to Landlord. The cost of any such contest shall be paid as Additional Rent in the same proportionate share as the real estate taxes are paid. (b) Real Estate Tax Real estate tax means: (i) any fee, license fee, license tax, business license fee, commercial rental tax, levy, charge, assessment, penalty or tax imposed by any taxing or judicial authority against the Shopping Center or land upon which the Shopping Center is located; (ii) any tax on Landlord's right to receive, or the receipt of, rent or income from the Shopping Center or against Landlord's business of leasing the Shopping Center; (iii) any tax or charge for fire protection, streets, sidewalks, road maintenance, refuse or other services provided to the Shopping Center by any governmental agency; (iv) any tax imposed upon this transaction, or based upon a re- assessment of the Shopping Center due to a change in ownership or transfer of all or part of Landlord's interest in the Shopping Center; and (v) any charge or fee replacing any 08/09/11 5 Landlo TenantV, DRAFT 8/2/11 tax previously included within the definition of real property tax. 2.07 Interest on Delinquent Rent All delinquent Fixed Minimum Rent, Additional Rent and other charges due under this Lease shall accrue interest at a rate equal to the lesser of one and one -half percent (1.5 %) per month or the maximum amount permitted by law, from the due date of such payment and shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord upon demand. Payment shall not be deemed received if Tenant's payment is not actually collected (such as payment by insufficient funds check). ARTICLE III: CLEANING AND REPAIR OF LEASED PREMISES 3.01 Landlord's Obligations As of the time Tenant takes possession of the Leased Premises, Landlord, at its cost and expense, shall clean the Leased Premises, and the air conditioning, heating, plumbing, electrical systems and equipment shall be in working condition. Except as above, the respective obligations of Landlord and Tenant as regards maintenance and repairs are governed by Article VII hereinafter. ARTICLE IV: CONDUCT OF BUSINESS 4.01 Use of Premises Tenant shall use the Leased Premises solely for the purpose set forth in Section 1.010) and shall operate under the trade name set forth in Section 1.01(k), and for no other business or purpose or under any other name without the prior written consent of Landlord. Consent may be subject to conditions as Landlord deems appropriate. 4.02 Operation of Business Tenant shall operate and keep open to the public the entire Leased Premises in good faith during the term hereof with due diligence and efficiency so as to produce the maximum gross receipts, carry a reasonably stock of merchandise, maintain reasonably adequate personnel for efficiently accommodating its customers, and at all times maintain displays of merchandise in the display windows (if any) of the Leased Premises. This provision shall apply whether or not Percentage Rent is applicable to this Lease. The Leased Premises shall not be used in any manner that would necessitate (in accordance with any requirement of law or of any public authority) the making of an addition or alteration in or to the Leased Premises by Landlord. ARTICLE V: COMMON USE FA CILITIE S 5.01 Control of Common Facilities by Landlord The common facilities as defined in this Lease shall at all times be subject to the exclusive control and management of Landlord, and Landlord shall have the right from time to time to establish, revoke, modify and enforce reasonable rules and regulations with respect to all or any part of said facilities. Landlord shall also have the right to close all or any portion of said areas or facilities to such extent as may, in the opinion of Landlord's counsel, be legally sufficient to prevent a dedication thereof or the accrual of any rights to any person or the public therein; and to do and perform such other acts in and to said areas and improvement, and/or revise and develop the same, as Landlord shall determine to be advisable, with a view to the improvement of the convenience and use thereof by the tenants of the Shopping Center and their customers, provided proper access to the Leased Premises is maintained. 5.02 Common Facilities Contribution During each calendar year or any portion thereof during the Lease term, Tenant will pay to Landlord as Additional Rent, subject to the limitations hereinafter set forth, a proportion of the common area operating costs hereinafter defined, based upon the ratio that Tenant's gross leaseable area bears to the gross leasable area leased and available for lease to all tenants in the Shopping Center, 08/09/11 6 Landlord (TIO nant DRAFT 8/2/11 excluding for any item of costs, the gross leasable area of any tenant responsible for directly paying such costs or who is otherwise exempted from the payment thereof, provided, however, if any item of common area operating cost for the Shopping Center is increased materially because of Tenant's use, Tenant shall additionally pay for such excess cost. Tenant's share of such costs shall be estimated by Landlord on an annual basis for each calendar twelve (12) month period ending on December 31, prorating fractional years. The initial estimate shall be as set forth in Section 1.01(m). Tenant shall pay such estimated charge in monthly installments on the first day of each month in advance, and shall pay any excess charge within thirty (30) days of receiving a detailed statement therefor from Landlord or Tenant shall be in default of the Lease. 5.03 Definitions For the purpose "of this paragraph, "common area operating costs" means the total cost (other than the cost properly chargeable to capital account except as herein specifically provided) and expense incurred in operating, managing, maintaining, repairing, relocating, modifying, renovating and replacing the common facilities hereinafter defined, including without limitation the costs of maintaining roof, walls, foundations, detention ponds, porches, sprinkler systems, utility lines and resurfacing or patching the parking areas and labor associated with line painting, sidewalks and curbs, security and traffic control, security alarm systems, public liability and umbrella insurance, gardening, watering and landscaping, lighting, maintenance of sanitary control, all costs for utilities to common areas, removal of snow, ice, drainage, rubbish, and other refuse, costs to remedy and/or comply with governmental and/or environmental and hazardous waste matters, repair or installation of equipment for energy- saving or safety purposes, reserves for future maintenance and repair work (which Tenant hereby authorizes Landlord to use as necessary), and costs associated with any merchants' association for the Shopping Center, cost of personnel required to provide such services, all costs and expenses associated with Landlord's obligation to repair and maintain and such other items of cost and expense which relate to proper maintenance of the common facilities, plus ten percent (10%) , of all of the foregoing costs to cover the administrative cost relative to common facilities. "Common facilities" means all areas, space, equipment, and special services provided by Landlord for common or joint use and benefit of the occupants of the Shopping Center, their employees, agents, servants, customers and invitees, including without limitation roofs, walls, parking areas, access roads, driveways, retaining walls, landscaped and vacant areas, loading facilities, pedestrian walkways, ramps, wash rooms, foundations, shelters, signs, security, lighting fixtures and equipment, cost of utility service, and the facilities appurtenant to each of the aforesaid, and any other facilities maintained for the benefit of the Shopping Center. Landlord shall have the right to modify the common facilities from time to time as deemed reasonable by Landlord, provided proper access to the Leased Premises in maintained. ARTICLE VI: ALTERATIONS, LIENS AND SIGNS 6.01 Alterations The requirements of this Section 6.01 shall apply to Tenant's Work as described in Section 1.06 and any alterations thereafter. Tenant shall not, without Landlord's .prior written consent, either make or cause to made any alterations, including additions and improvements, to the Leased Premises or to any exterior signs, shades or awnings. Consent shall be at Landlord's sole discretion. Any alterations consented to by Landlord shall be made at Tenant's sole expense. Tenant shall provide its own trash containers for construction debris; use service entrances to the Leased Premises, if any; conduct no core drillings during business hours; and disrupt other Tenants as little as possible. Tenant shall .secure any and all governmental permits, approvals or authorizations required in connection with any such work and shall hold Landlord harmless from any and all liability, costs, damages, expenses (including attorney's fees) and liens resulting therefrom. All alterations (expressly including all light fixtures and floor coverings, except trade fixtures, appliances and equipment that do not become a part of the Leased Premises), shall immediately become the property of Landlord. Tenant shall provide Landlord with plans, copies of all construction contracts, and proof of payment for all labor and materials. 08109111 7 Landlo enant-_?fi DRAFT 8/2/11 6.02 Tenant Shall Discharge All Liens Tenant shall promptly pay its contractors and materialmen for all work done and performed by Tenant, so as to prevent the assertion or imposition of liens upon or against the Leased Premises, and shall, upon request provide Landlord with lien waivers, and should any such lien be asserted or filed, Tenant shall bond against or discharge the same within ten (10) days after written request by Landlord. In the event Tenant fails to remove said lien within said ten (10) days, Landlord may, at its sole option, elect to satisfy and remove the lien by paying the full amount claimed or otherwise, without investigating the validity thereof, and Tenant shall pay Landlord upon demand, the amount paid out by Landlord in Tenant's behalf, including Landlord's costs and expenses with interest or Tenant shall be in default hereunder. Landlord's election to discharge liens as provided hereunder shall not be construed to be a waiver or cure of Tenant's default hereunder. 6.03 Signs. Awnings and Canopies Tenant will not, without Landlord's prior written consent, such consent shall be at Landlord's sole discretion, place or suffer to be placed or maintained upon the roof or on any exterior door, wall or window of the Leased Premises, any sign, awning or canopy, or advertising matter or other thing of any kind, and will not without such consent place or maintain any decoration, lettering or advertising matter on the glass of any window or door of the Leased Premises, except for one (1) neon haircut sign and one (1) plexiglass (32x48) sign advertising specials. All signs, awnings, canopies, decorations, lettering, advertising matter or other thing so installed by Tenant shall at all times be maintained by Tenant, at its expense, in good condition and repair. Landlord reserves the exclusive right to use for any purpose. whatsoever any portion of the roof and exterior of the walls of the Leased Premises or the building of which the Leased Premises are a part. If Tenant installs any sign that does not meet Landlord's sign criteria, Landlord shall have the authority without liability to enter the Leased Premises, remove and store the subject sign and repair all damage caused by removal of the sign. All expenses Landlord incurs shall be immediately paid by Tenant as Additional Rent. Landlord reserves the right to remove Tenant's sign during any period when Landlord repairs, restores, constructs or renovates the Leased Premises or the building of which the Leased Premises are a part. ARTICLE VII: MAINTENANCE OF LEASED PREMISES, SURRENDER AND RULES 7.01 Maintenance. Repair, and Replacement by Tenant Tenant shall, at its expense, at all times repair, maintain, and replace (a) the interior of the Leased Premises, together with exterior entrances, all glass and all window moldings, (b) all fixtures, partitions, ceilings, floor coverings and utility lines in the Leased Premises, and all plumbing and sewage facilities within the Leased Premises including free flow up to utility owned sewer lines, and all doors, door openers, equipment, machinery, appliances, signs and appurtenances thereof (including lighting, heating, air conditioning, and plumbing equipment and fixtures), in conformity with governmental regulations and all rules and regulations of the Board of Fire Underwriters, in good order, condition, maintenance and repair. If any item which Tenant is obligated to repair cannot be fully repaired, Tenant shall promptly replace such item, regardless of whether the benefit of such replacement extends beyond the term of this Lease. Tenant shall make any structural, interior and exterior alterations and/or repairs to the Leased Premises required by any governmental entity or insurance carrier arising from damage caused by Tenant, its employees, servants or agents. If Tenant is required to make any exterior, interior or structural alterations, additions or improvements in the Leased Premises, Tenant shall proceed with same at its own cost after first obtaining Landlord's written approval of the plans therefor and satisfaction of each of the conditions set forth in Section 6.01 hereof. Tenant shall use, at its cost and at intervals, as Landlord shall reasonably require, a reputable service company to clean and replace air- conditioning filters; or, at Landlord's option, Landlord may contract for such services and include the charges therefor as a common area operating cost. If Tenant refuses or neglects to commence or complete repairs, maintenance or replacements promptly and adequately, Landlord may make or complete said repairs, maintenance or replacements and Tenant 08/09/11 8 Landlord Tenant DRAFT 8/2/11 shall pay the cost thereof to Landlord upon demand. Notwithstanding the foregoing, Tenant shall have the right to employ its own certified HVAC technician who will service the HVAC equipment on the Leased Premises at Least on a semi - annual basis. 7.02 Maintenance by Landlord Subject to Article XIII, the structural portions of the Leased Premises, the roof, exterior walls and the foundations and utility systems serving the Shopping Center located outside the Leased Premises, shall be maintained by Landlord, except when the condition requiring such repairs shall result from Tenant's act or the fault of Tenant, its officers, agents, customers or employees. In the event Landlord fails to commence repairs it is obligated hereunder to make within thirty (30) days after written notice from Tenant specifying the necessary repairs, Tenant may make such repairs and be entitled to a credit from Landlord for the reasonable costs of said repairs. Landlord will be responsible for all major mechanical repairs, including HVAC and all utility lines to the building. 7.03 Surrender of Premises At the expiration of the tenancy hereby created, Tenant shall peaceably surrender the Leased Premises, including all alterations, additions, improvements, decorations and repairs made thereto (but excluding all trade fixtures, which shall include but not be limited to hot water heater (if installed by Tenant), styling stations, shampoo bowls and cabinetry, mirrors and retail and supply room shelving, equipment, signs and other personal property installed by Tenant.) provided that in no event shall Tenant remove any of the following materials or equipment without Landlord's prior written consent: any free standing signs, any power wiring or power panels; lighting or lighting fixtures; wall coverings; drapes, blinds or other window coverings; carpets or other floor coverings; or other similar building operating equipment and decorations), Tenant shall leave Leased Premises broom clean and in good condition and repair, reasonable wear and tear excepted. Tenant shall remove all its property not required to be surrendered to Landlord before surrendering the Leased Premises as aforesaid and shall repair any damage to the Leased Premises caused thereby. Any personal property remaining in the Leased Premises at the expiration of the lease term shall be deemed abandoned by Tenant, and Landlord may claim the same and shall in no circumstances have any liability to Tenant therefor. Upon termination, Tenant shall also surrender all keys for the Leased Premises to Landlord and, if applicable, inform Landlord of any combinations of locks or safes in the Leased Premises. If the Leased Premises are not surrendered at the end of the term as hereinabove set out, Tenant shall indemnify Landlord against loss or liability resulting from delay by Tenant in so surrendering the Leased Premises, including without limitation claims made by the succeeding Tenant founded on such delay. Tenant's obligation to observe or perform this covenant shall survive the expiration or other termination of the term of this Lease. 7.04 Rules and Remdations Tenant agrees as follows: a) The delivery or shipping of goods, merchandise, supplies and fixtures to and from the Leased Premises shall be subject to such rules and regulations as in the judgment of Landlord are necessary for the proper operation of the Shopping Center. b) No loudspeakers, televisions, phonographs, radios or other devices shall be used in a manner so as to heard or seen outside the Leased Premises without the prior written consent of Landlord. C) Tenant shall not place or permit any obstructions or merchandise in the outside areas immediately adjoining the Leased Premises or other common facilities and shall not use such areas for business purposes other than for ingress and egress. d) Tenant and Tenant's employees shall park their cars only in those 08/09/11 9 Landlord Tenant —je DRAFT 8/2/11 portions of the parking area designated for that purpose by Landlord. e) Tenant shall have full responsibility for protecting the Leased Premises and the property located therein from theft and robbery. f) Tenant shall not permit on the Leased Premises any act or practice which is unlawful, immoral, or which might injure the reputation of the Shopping Center. g) Tenant and Tenant's employees and agents shall not solicit business in the parking or other common areas, nor shall Tenant distribute or place handbills or other advertising matter in or on automobiles parked in the parking areas or in other common areas. h) Tenant shall not conduct any auction, fire, bankruptcy sales or closeout sales in the Leased Premises. i) Tenant shall keep the Leased Premises free and clear of rodents, bugs and vermin, and Tenant shall use, at its cost and at such intervals as Landlord shall reasonably require, for all or substantially all other stores and businesses in the shopping center, a reputable pest extermination contractor to provide extermination services in the Leased Premises. j) Tenant shall keep the Leased Premises and adjacent common areas orderly, neat, clean and free from rubbish and trash at all times and permit no refuse to accumulate around the exterior of the Leased Premises. Tenant shall not burn any trash, rubbish or garbage in or about the Leased Premises. Trash shall be stored in a sanitary and inoffensive manner inside the Leased Premises or in screened areas approved by Landlord, and Tenant shall cause the same to be removed at reasonable intervals. k) The Leased Premises shall be open for business each and every day, except legal holidays, during the minimum hours established by Landlord. 1) To use or permit the use of common facilities by others to whom Landlord may grant or may have granted such rights in such manner as Landlord may from time to time designate, including but not limited to truck and trailer sales and special promotional events. Landlord reserves the right from time to time to amend or supplement the foregoing rules and regulations and to adopt and promulgate reasonable additional rules and regulations applicable to the Leased Premises. Notice of such rules and regulations and amendments and supplements thereto, if any, shall be given to Tenant in writing. Tenant agrees to comply with all such rules and regulations, and Tenant shall be responsible for the observance of these rules and regulations by Tenant's employees, agents and invitees. The foregoing rules are solely for the benefit of Landlord, and Landlord shall have no obligation to enforce such rules for the benefit of Tenant. Landlord, at its option, may waive certain rules with respect to individual Tenants. If Tenant violates any rule, Landlord may notify Tenant that Tenant is in default. ARTICLE VIII: INSURANCE AND INDEMNITY 8.01 Casualty Insurance Tenant shall at all times keep and maintain in force and effect its own insurance coverage, protecting it from loss, damage or injury by whatever means, with respect to all furniture, fixtures, machinery, equipment, stock in trade, and all other items kept, used, or maintained by Tenant in the Leased Premises. 8.02 Waiver of Subroeation. Each of the parties hereto does hereby release the other party hereto from all liability for damage due to any act or neglect of the other party 08/09/11 10 Landlo Tenant DRAFT 8/2/11 (except as hereinafter provided) occasioned to property owned by said parties which is or might be incident to or the result of a fire or any other casualty, against loss from which either of the parties is now carrying or hereafter may carry insurance; provided, however, that the release herein contained shall not apply to any loss or damage occasioned by the willful acts of either of the parties hereto. The parties further covenant that any insurance obtained on their respective properties shall contain an appropriate provision whereby the insurance company or companies consent(s) to the mutual release of liability contained in this paragraph. 8.03 Increase in Fire Insurance Premiums Tenant agrees not to keep, use, sell or offer for sale, in or upon the Leased Premises, any articles or goods which may be prohibited by the standard form of fire insurance policy. Tenant agrees to pay upon demand any increase in premium for fire and extended coverage insurance and all other perils that may be charged during the term of this Lease on the amount of such insurance which may be carried by Landlord on said premises, or the building of which the same are a part, resulting from the use of the Leased Premises by Tenant, whether or not Landlord has consented to such use. 8.04 Liability Insurance Tenant shall, during the entire term hereof, keep in full force and effect a policy of public liability and property damage insurance with respect to the Leased Premises and the business operated by Tenant and permitted subtenants of Tenant in the Leased Premises in which the limits of coverage shall not be less than $1,000,000 per occurrence for bodily and/or personal injuries, and in which the coverage for property damage liability shall not be less than $1,000,000 or a combined single limited of $1,000,000. 8.05 Indemnification of Landlord Tenant will protect, indemnify, defend and save harmless Landlord, its agents and servants, from and against any and all claims, actions, damages, suits, judgments, decrees, orders, liability and expense (including costs and attorney fees) in connection with loss of life, bodily injury, personal injury and/or damage to property of whatever kind or character, howsoever caused, arising from or out of any occurrence in the Leased Premises, or in the occupancy or use by Tenant of the Leased Premises or any part thereof, or occasioned wholly or in part by any act or omission of Tenant, its agents, contractors, employees, servants, sublessees or concessionaires, notwithstanding any possible negligence (whether sole, concurrent or otherwise) on the part of Landlord, its agents, contractors, employees or servants. 8.06 Plate Glass Insurance Tenant shall keep and maintain in force during the term hereof, plate glass insurance upon windows and doors in the Leased Premises. Tenant shall have the right to self - insure under this clause. 8.07 Liquor Liability Insurance In the event that at any time during the term of this Lease or any extension or renewal thereof, beer, wines or other alcoholic liquors or beverages are sold or given away upon or from the Leased Premises (it being understood and agreed, however, that the foregoing provision shall not authorize the use of the Leased Premises for such purposes without the express consent of Landlord being set forth otherwise in this Lease), Tenant shall, at its sole expense, obtain, maintain and keep in force, adequate liquor liability insurance protecting both Tenant and Landlord in connection therewith within policy limits acceptable to Landlord. In the event Tenant shall fail to procure such insurance where applicable, Landlord may procure the same at Tenant's expense. In the event such insurance is not carried, sales of the foregoing products shall be suspended until such coverage is in force. 8.08 Insurance Policy The insurance required in this Article VIII shall be in form approved by Landlord, shall name Landlord and Tenant as the insured, and shall contain a clause that the insurer will not cancel, materially modify or fail to renew the insurance without first giving Landlord thirty (30) days' prior written notice. The insurance shall be in an insurance company approved by Landlord, authorized to do business in the State and have a policyholder's rating of no less than "A" in the most current edition of Best's Insurance Reports. A copy of the policy or a certificate of insurance shall be 08/09/11 11 Landlord T ®nant 0-io DRAFT 8/2/11 delivered to Landlord. The policy shall insure Tenant's performance of the indemnity provisions of Section 8.05 hereof. ARTICLE IX: UTILITIES 9.01 Utility Charges Tenant shall be solely responsible for and promptly pay all charges for heat, water, gas, sewer, electricity, or any other utility or service used on or attributable to the Leased Premises. Landlord may elect to furnish any one or more of the above utility services, in which event Tenant shall accept and use such services as furnished by Landlord. Landlord's charges therefor shall not exceed the rates charged by local public utility companies to retail customers for the same or similar services. In no event shall Landlord be liable for an interruption or failure in the supply of any such utilities or services supplied by Landlord because of necessary repairs or improvements or for any cause beyond Landlord's control. ARTICLE X PRIORITY OF LEASE 10.01 Subordination Landlord shall have the right to transfer, mortgage, assign or pledge, in whole or in part the Leased Premises, the Shopping Center, this Lease and all rights of Landlord for rents and other amounts payable to it under the provisions hereof; and nothing herein contained shall limit or restrict any such right, and the rights of Tenant under this Lease shall be subject and subordinate to all instruments executed and to be executed in connection with the exercise of any such right of Landlord, including, but not limited to, the lien of any mortgage, deed of trust or security agreement (which instruments are hereinafter collectively referred to as "mortgage ") now or hereafter placed upon the Leased Premises and the Shopping Center and to all renewals, modifications, consolidations, participations, replacements and extensions thereof. Said subordination shall not require the agreement or consent of Tenant, but Tenant covenants and agrees, if requested, to execute and deliver upon demand such further instruments subordinating this Lease to the lien of any such mortgage as shall be requested by Landlord and/or any mortgagee or proposed mortgagee, and Tenant hereby irrevocably appoints Landlord as its attorney -in -fact to execute and deliver any such instrument for and in the name of Tenant. Notwithstanding anything set out in this Lease to the contrary, in the event the holder of any mortgage elects to have this Lease superior to its mortgage, then, upon Tenant being notified to that effect by such encumbrance holder, this Lease shall be deemed prior to the lien of said mortgage, whether this Lease is adopted prior to or subsequent to the date of said mortgage. 10.02 Notice to Landlord of Default In the event of any act or omission by Landlord which would give Tenant the right to terminate this Lease or claim a partial or total eviction, or make any claim against Landlord for the payment of money, Tenant will not make such claim or exercise such right until it has given written notice of such act or omission to (a) Landlord; and (b) the holder of any mortgage as to whom Landlord has instructed Tenant to give copies of all of Tenant's notices to Landlord; and after thirty (30) days shall have elapsed following the giving of such notice, during which such parties or any of them has not commenced diligently to remedy such act or omission or to cause the same to be remedied. Nothing herein contained shall be deemed to create any rights in Tenant not specifically granted in this Lease or under applicable provisions of law. . 10.03 Estoppel Certificate Tenant agrees, at any time, and from time to time, upon not less than ten (10) days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord, a statement in writing addressed to Landlord or other party designated by Landlord certifying that this Lease is in full force and effect (or, if there have been modifications, that the same is in full force and effect as modified and stating the modifications), stating the actual commencement and expiration dates of the Lease, stating the dates to which rent, and other charges, if any, have been paid, that the Leased 08/09/11 12 Landlord Tenant DRAFT 8/2/11 Premises have been completed on or before the date of such certificate and that all conditions precedent to the Lease taking effect have been carried out, that Tenant has accepted possession, that the lease term has commenced, Tenant is occupying the Leased Premises and is open for business, and staring whether or not there exists any default by either party in the performance of any covenant, agreement, term, provision or condition contained in this Lease, and, if so, specifying each such default of which the signer may have knowledge and the claims or offsets, if any, claimed by Tenant; it being intended that any such statement delivered pursuant hereto may be relied upon by Landlord or a purchaser of Landlord's interest and by any mortgagee or prospective mortgagee of any mortgage affecting the Leased Premises or the Shopping Center. If Tenant does not deliver such statement to Landlord within such ten (10) day period, Landlord and any prospective purchaser or encumbrancer may conclusively presume and rely upon the following facts: (i) that the terms and provisions of this Lease have not been changed except as otherwise represented by Landlord; (ii) that this Lease has not been canceled or terminated except as otherwise represented by Landlord; (iii) that not more than one (1) month's Fixed Minimum Rent or Additional Rent have been paid in advance; and (iv) that Landlord is not in default under the Lease. In such event, Tenant shall be estopped from denying the truth of such facts. Tenant shall also, on ten (10) days' written notice, provide an agreement in favor of and in the form customarily used by such encumbrance holder, by the terms of which Tenant will agree to give prompt written notice to any such encumbrance holder in the event of any casualty damage to the Leased Premises or in the event of any default on the part of Landlord under this Lease, and will agree to allow such encumbrance holder a reasonable length of time after notice to cure or cause the curing of such default before exercising Tenant's right of self -help under this Lease, if any, or terminating or declaring a default under this Lease. 10.04 Attornment At the option of the holder of any mortgage affecting the Leased Premises, Tenant agrees that no foreclosure of a mortgage affecting the Leased Premises, nor the institution of any suit, action, summary or other proceeding against Landlord herein, or any successor Landlord, or any foreclosure proceeding brought by the holder of any such mortgage to recover possession of such property, shall by operation of law or otherwise result in cancellation or termination of this Lease or the obligations of Tenant hereunder, and upon the request of the holder of any such mortgage, Tenant covenants and agrees to execute an instrument in writing satisfactory to such party or parties or to the purchaser of the Leased Premises in foreclosure whereby Tenant attorns to such successor in interest. ARTICLE XI ASSIGNMENT AND SUBLETTING 11.01 Consent Required Tenant shall not voluntarily or involuntarily assign this Lease in whole or in part, nor sublet all or any part of the Leased Premises without following the procedures detailed herein and the prior written consent of Landlord in each instance, which consent will not be unreasonably withheld. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent in any subsequent assignment or subletting. The foregoing shall be construed to include a prohibition against any voluntary or involuntary assignment or subletting arising by operation of law. In the event that Tenant receives a bona fide written offer from a third party for the sublease or assignment of the Leased Premises, Tenant shall forthwith notify Landlord in writing attaching a copy of said offer, of Tenant's desire to sublet or assign this Lease upon the terms of said offer, whereupon Landlord shall have thirty (30) days to accept or reject said assignment or sublease, or at Landlord's sole option cancel and terminate this Lease, including the right to enter into a direct lease with the proposed assignee or subtenant before or after such termination. Notwithstanding any assignment or sublease, Tenant shall remain fully liable on this Lease and shall not be released from performing any of the terms, covenants and 08109111 13 Landlo Tenant - ,V� DRAFT 8/2/11 conditions hereof. If Tenant is a corporation or partnership, any sale, transfer, leveraged buyout or other disposition of more than fifty percent (50 %) of the corporate stock or more than fifty percent (50 %) of partnership ownership, or any reorganization or restructuring which results in the net worth of Tenant decreasing by more than ten percent (10 %) shall be deemed to be an assignment. Landlord shall have the right to sell, convey, transfer or assign all or any part of its interest in the real property and the buildings of which the Leased Premises are a part or its interest in this Lease, and Tenant agrees to attorn to Landlord's purchaser or assignee. All covenants and obligations of Landlord under this Lease shall cease upon the execution of such conveyance, transfer or assignment, but such covenants and obligations shall run with the land and shall be binding upon the subsequent owner or owners thereof or of this Lease. ARTICLE XII: WASTE, GOVERNMENTAL AND INSURANCE REQUIREMENTS AND HAZARDOUS SUBSTANCES 12.01 Waste or Nuisance Tenant shall not commit or suffer to be committed any waste upon the Leased Premises or any nuisance or other act or thing which may disturb the quiet enjoyment of any other tenant in the building in which the Leased Premises may be located or in the Shopping Center, or which may disturb the quiet enjoyment of occupants of adjoining properties. 12.02 Governmental and Insurance Requirements Tenant shall, at its sole cost and expense, comply with all of the requirements of any insurance carrier for the Shopping Center and the laws, regulations or zoning ordinances or conditions of all county, municipal, state, federal and other applicable governmental authorities, now in force or which may hereafter be in force. 12.03 Hazardous Substances Tenant covenants and warrants that Tenant, Tenant's Work and any alterations thereto and Tenant's use of Leased Premises will at all times comply with and conform to all laws, statutes, ordinances, rules and regulations of any governmental, quasi - governmental or regulatory authorities ( "Laws ") which relate to the transportation, storage, placement, handling, treatment, discharge, generation, production or disposal (collectively "Treatment") of any waste, petroleum product, waste products, radioactive waste, poly - chlorinated biphenyls, asbestos, hazardous materials of any kind, and any substance which is regulated by any law, statute ordinance, rule or regulation (collectively "Waste "). Tenant further covenants and warrants that it will not engage in or permit any person or entity to engage in any Treatment of any Waste on or which affects the Leased Premises. Immediately upon receipt of any Notice (as hereinafter deemed) from any person or entity, Tenant shall deliver to Landlord a true, correct and complete copy of any written Notice. "Notice" shall mean any note, notice or report of any suit, proceeding, investigation, order, consent order injunction, writ, award or action related to or affecting or indicating the Treatment of any Waste in or affecting the Leased Premises. Tenant hereby agrees it will indemnify, defend, save and hold harmless Landlord and Landlord's officers, directors, shareholders, employees, agents, partners, and their respective heirs, successors and assigns (collectively "Indemnified Parties ") against and from, and to reimburse the Indemnified Parties with respect to, any and all damages, claims, liabilities, loss, costs and expense (including, without limitation, all attorneys' fees and expenses, court costs, administrative costs and costs of appeals), incurred by or asserted against the Indemnified Parties by reason of or arising out of: (a) the breach of any representation or undertaking of Tenant under this Section 12.03 or (b) arising out of the Treatment of any waste by Tenant or any licensee, concessionaire manager or other party occupying or using the Leased Premises, in or affecting the Leased Premises. Landlord is given the right, but not the obligation, to inspect and monitor the Leased Premises and Tenant's use of the Leased Premises in order to confirm Tenant's 08/09/11 14 Landlord Tenant DRAFT 8/2/11 compliance with the terms of this Section 12.03 and the representations set forth in this Section 12.03. Landlord may require that Tenant deliver to Landlord concurrent with Tenant's vacating the Leased Premises upon the expiration of this Lease, or any earlier vacation of the Leased Premises by Tenant, at Tenant's expense, a certified statement by licensed engineers satisfactory to Landlord, in form and substance satisfactory to Landlord, stating that Tenant, Tenant's Work and any alterations thereto and Tenant's use of the Leased Premises complied and conformed to all Laws which relate to the Treatment of any Waste in or affecting the Leased Premises. Tenant agrees to deliver upon request from Landlord estoppel certificates to Landlord expressly stipulating whether Tenant is engaged in or has engaged in the Treatment of any Waste in or affecting the Leased Premises, and whether Tenant has caused any spill, contamination, discharge, leakage, release or escape of any Waste in or affecting the Leased Premises, whether sudden, gradual, accidental or anticipated, or of any other nature at or affecting the Leased Premises and whether, to the best of the Tenant's knowledge, such an occurrence has otherwise occurred at or affecting the Leased Premises. Tenant shall be fully responsible at its own cost to install and maintain a grease trap per code. ARTICLE XIII: DESTRUCTION OF LEASED PREMISES 13.01 Partial Destruction In the event of the partial destruction of the building or improvements within which the Leased Premises are located, by fire 'or any other casualty, Landlord shall restore or repair said building and improvements with reasonable diligence. Landlord shall expend such sums as required to repair or restore improvements to the condition they were in immediately prior to the date of the destruction. A just and proportionate part of the Fixed Minimum Rent and all Additional Rent, payable by Tenant, to the extent that such damage or destruction renders the Leased Premises untenantable, shall abate from the date of such damage or destruction until the Leased Premises are repaired or restored. 13.02 Substantial Destruction If the Leased Premises shall be so damaged by fire or other casualty or happening as to be substantially destroyed, then Landlord shall have the option to terminate this Lease by giving Tenant written notice within thirty (30) days after such destruction,. and any unearned Fixed Minimum Rent and all Additional Rent shall be apportioned and returned to Tenant. If Landlord does not elect to cancel this Lease as aforesaid, then the same shall remain in full force and effect and Landlord shall proceed with all reasonable diligence to repair and replace the Leased Premises to the condition they were in prior to the date of such destruction, and during the time the Leased Premises are so destroyed and totally untenantable, the Fixed Minimum Rent and all Additional Rent shall be abated. 13.03 Partial Destruction of Shopping Center In the event that sixty percent (60 %) or more of the gross leasable area in the Shopping Center shall be damaged or destroyed by fire or other cause, notwithstanding that the Leased Premises may be unaffected by such fire or other cause, Landlord shall have the right, to be exercised by notice in writing delivered to the Tenant within thirty (30) days after said occurrence, to cancel and terminate this Lease. Upon the giving of such notice to Tenant, the term of this Lease shall expire by lapse of time upon the third (3` day after such notice is given, and Tenant shall vacate the Leased Premises and surrender the same to Landlord pursuant to the terms of this Lease. ARTICLE XIV: EMINENT DOMAIN 14.01 Condemnation In the event of any. condemnation or conveyance in lieu thereof of the Leased Premises or the Shopping Center, or both, whether whole or partial, Landlord may terminate this Lease, and in any event, Tenant shall have no claim against 08/09/11 15 Landlo Tenant DRAFT 8/2/11 Landlord or the condemning authority for the value of the unexpired term, and Tenant shall not be entitled to any part of the compensation or award, whether paid as compensation for diminution in value to the leasehold or to the fee of the Leased Premises, and Landlord shall receive the full amount thereof, Tenant hereby waiving any right to any part thereof and assigning to Landlord its interest therein; provided, however, to the extent the amount recoverable by Landlord, as hereinabove set forth, is not diminished thereby, Tenant shall have the right to claim and recover from the condemning authority (but not from Landlord) such compensation as may be separately awarded to Tenant in Tenant's own name and right on account of all damage to Tenant's business by reason of the condemnation and any cost which Tenant may incur in removing Tenant's property from the Leased Premises. Provided, further, Tenant's rights to recover under this paragraph shall be subordinate to the rights of Landlord's first mortgagee. ARTICLE XV: DEFAULT OF TENANT 15.01 Default The following shall constitute an "Event of Default" under this Lease: a) failure of Tenant to make, within ten (10) days after the date when due, any payment of Fixed Minimum Rent, Percentage Rent, Additional Rent or other charge payable by Tenant hereunder or to timely discharge any other monetary obligation (it being understood that Tenant's obligation to pay any rental herein is an independent covenant and that Tenant will pay such rental without offset or deduction). b) Tenant's failure to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than thirty (30) days after written notice thereof; provided, however, that such right to written notice shall be noncumulative and limited to a maximum twice (2) during each calendar year of the term of this Lease. C) if Tenant shall become bankrupt or insolvent, or file or have filed against it any bankruptcy proceedings, or take or have taken against it in any court pursuant to any statute, either of the United States or of any state, a petition of bankruptcy or insolvency, or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant's property, or if Tenant makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement. d) if Tenant shall abandon or vacate the Leased Premises, or suffer this Lease to be taken under any writ of execution. e) if Tenant shall default in the timely payment of Fixed Minimum Rent, Additional Rent, Percentage Rent or other charge payable by Tenant hereunder or to timely discharge any other monetary obligation three (3) times in any twelve (12) month period notwithstanding the fact that any such default shall have been cured. f) the deliberate falsification by Tenant of any agent of Tenant of any report or statement required to be furnished to Landlord pursuant to the terms of this Lease. The deliberate falsification of any such document shall be deemed an incurable, material breach of this Lease and, at Landlord's option, constitute an immediate termination of Tenant's right to possession of the Leased Premises. If any Event of Default occurs, Landlord, besides all such other rights or remedies it may have under this Lease or in law or in equity, shall have the immediate right to enter the Leased Premises and take possession thereof and of all permanent improvements thereon and may remove all persons and property from the Leased Premises by summary action or otherwise, and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant. 08/09/11 16 Landlord Tenan DRAFT 8/2/11 Tenant agrees that Tenant shall have no further claim under this Lease and shall quit and deliver up the possession of the Leased Premises, including permanent improvements to the Leased Premises, when this Lease terminates by expiration of the term or in any other manner provided for herein. 15.02 Remedies If an Event of Default occurs, Landlord may elect to re- enter, as herein provided, or take possession pursuant to legal proceedings or pursuant to any notice provided for herein, and it may either terminate this Lease, or it may from time to time without terminating the Lease make such alterations and repairs as may be necessary in order to relet the Leased Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord, in its sole discretion, may deem advisable. Upon each such reletting all.rental received by Landlord from such reletting shall be applied first to the payment of an indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including brokerage fees and attorneys' fees, and of costs of such alterations and repairs; third, to the payment of the most current rent owed at that time; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder from Tenant. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant shall be liable for the payment of such deficiency to Landlord. Such deficiency shall be calculated and become payable monthly. No such re -entry or the taking of possession of the Leased Premises by Landlord shall be construed as an election on its part to terminate this Lease or to accept a surrender thereof unless a written notice of such intention be given to Tenant. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any Event of Default, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Leased Premises, and the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term over the then - reasonable rental value of the Leased Premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the average annual Fixed Minimum, Additional and Percentage Rents paid by Tenant from the commencement of the term to the time of default, or during the preceding three (3) full calendar years, whichever period is shorter. Any reletting shall be done in such a manner as Landlord may deem proper, and if Tenant believes Landlord's efforts are not sufficient, Tenant shall so notify Landlord in writing and shall specify in detail such additional action Landlord should take. Unless such notice is given, Landlord's efforts to relet shall be deemed to be adequate. Tenant agrees that this Lease is a lease of "real property in a shopping center" and that a debtor in possession and/or trustee in bankruptcy acting pursuant to the provisions of the revised bankruptcy code, may assume this Lease only if, in addition to such other conditions of this Lease and of applicable law, said debtor in possession/trustee shall provide Landlord with such written assurances of future performance as are acceptable to Landlord. Any closing of Tenant's business, changt in product or service mix, alteration in the size of the Leased Premises, change in advertising program, change in method of operation or change of Tenant's trade name by said debtor in possession/trustee shall be deemed to be a material disruption in the tenant mix and balance of the Shopping Center. Landlord shall have at all times a valid lien for all rentals and other sums of money becoming due hereunder from Tenant, upon all goods, wares, equipment, fixtures, fiummiture and other personal property of Tenant situated on the Leased Premises, and such property shall not be removed therefrom without the consent of Landlord until all arrearages in rent as well and all other sums of money then due to Landlord hereunder shall first have been paid and discharged. Upon the occurrence of any Event of Default by Tenant, Landlord may, in addition to any other remedies provided herein or by law or equity, if permitted by law, enter upon the Leased Premises and take possession of any and all goods, wares, equipment, fixtures, furniture and other personal property of Tenant situated on the Leased Premises without 08/09/11 17 Landlord Tenant DRAFT 8/2/11 liability for trespass or conversion, and sell the same with or without notice at public or private sale, with or without having such property at the sale, at which Landlord or its assigns may purchase, and apply the proceeds thereof less any and all expenses connected with the taking of possession and sale of the property, as a credit against any sums due by Tenant to Landlord. Any surplus shall be paid to Tenant, and Tenant agrees to pay any deficiency forthwith. Alternatively, the lien hereby granted may be foreclosed in the manner and form provided by law for foreclosure of security interest or in any other form provided by law. Any statutory lien for rent is not hereby waived, the express contractual lien herein granted being in addition and supplementary thereto. Tenant will execute upon Landlord's request a financing statement and security agreement evidencing Landlord's security interest in Tenant's personal property and warrants to Landlord that there are not prior liens or security interests on said personal properties. In addition to other remedies available under this Lease, in the event of an occurrence of an Event of Default or, in the event of a threatened breach by Tenant of any of the covenants or provision hereof, Landlord shall have the right of injunction and . the right to invoke any remedy allowed at law or in equity as if re -entry, summary proceedings and other remedies were not herein provided for. Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedy, at law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event Tenant is evicted or dispossessed for any cause, or in the event Landlord obtains possession of the Leased Premises. No receipt of monies by Landlord from or for the account of Tenant or from anyone in possession or occupancy of the Leased Premises after the termination of this Lease or after the giving of any notice of termination shall reinstate, continue or extend the term of this Lease or affect any notice given to Tenant prior to the receipt of such money; it being agreed that after the service of notice of termination or commencement of a suit, or after final judgment for possession of the Leased Premises, Landlord may receive and collect any rent or amounts due Landlord and such payment shall not in any respect reinstate this Lease and shall not waive, affect or impair said notice, said suit or said judgment without the express written consent of Landlord. No delay or omission of Landlord to exercise any right or remedy under this Lease, or at law or in equity shall be construed as a waiver of such right or remedy of any Event of Default. 15.03 Legal Expenses If suit shall be brought or claim shall be made (whether or not suit is commenced or judgment entered) for recovery of possession of the Leased Premises, and/or the recovery of rent or any other amount due under provisions of this Lease, or because of the breach of any other covenant herein contained, and the breach shall be established, the non - prevailing party shall pay to the prevailing party, in addition to all other sums and relief available to the prevailing party, all expenses incurred therefor, including reasonable attorneys' fees to the extent permitted by law. 15.04 Failure to Pay: Interest If Tenant at any time shall fail to pay any taxes, assessments or liens, provide insurance or perform any act required by this Lease to be made or performed by it, or fail to pay any charge payable by Tenant or to timely discharge any other monetary obligation of Tenant required by this Lease, Landlord, without waiving or releasing Tenant from any obligation or default under this Lease, may (but shall be under no obligation to) at any time thereafter make such payment or perform such act for the account of and at the expense of Tenant. All sums so paid by Landlord and all costs and expenses so incurred shall accrue interest at a rate of ten percent (10 %) per annum, from the date of payment or incurring thereof by Landlord and shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord upon demand. ARTICLE XVI: ACCESS BY LANDLORD 16.01 Right of Entry Provided Tenant's business operation is not materially impaired, Landlord or Landlord's agents shall have the right to enter the Leased 08/09/11 18 Landlord 71Tonant4 DRAFT 8/2/11 Premises at all reasonable times to examine the same and to show it to purchasers and to make such repairs, alterations, improvements or the additions as Landlord may deem necessary or desirable, and Landlord shall be allowed to take all material into and upon the Leased Premises that may be required therefor without the same constituting an eviction of Tenant in whole or in part. During the six (6) months prior to the expiration of the term of this Lease or any renewal term, Landlord may exhibit the Leased Premises to prospective tenants or purchasers and place upon the Leased Premises the usual signage for space rental. Nothing herein contained, however, shall be deemed or construed to impose upon Landlord any obligation, responsibility or liability whatsoever for the care, maintenance or repair of the building or any part thereof, except as otherwise herein specifically provided. ARTICLE XVH: TENANT'S PROPERTY 17.01 Taxes on Leasehold Tenant shall be responsible for and shall pay before delinquency all municipal, county, or state taxes assessed during the term of this Lease against any leasehold interest or personal property of any kind owned by or placed in, upon, or about the Leased Premises by Tenant. 17.02 Loss and Damage Except to the extent caused by the negligence of Landlord, Landlord shall not be liable for any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain or snow, or leaks from any part of the Leased Premises, or from the pipes, appliances or plumbing works, or from the roof, street or subsurface, or from any other place, or by dampness or by any other cause of whatsoever nature, and whether originating in the Leased Premises or elsewhere. All property of Tenant kept or stored on the Leased Premises shall be so kept or stored at the risk of Tenant only, and Tenant hereby holds Landlord harmless from any claims arising out of damage to the same, including subrogation claims by Tenant's insurance carriers, a waiver of which shall be obtained in advance by Tenant. 17.03 Notice by Tenant Tenant shall give immediate notice to Landlord in case of fire or accidents, or damage to or of defects in the Leased Premises or in the building of which the Leased Premises are a part. ARTICLE XVHI: HOLDING OVER; SUCCESSORS 18.01 Holding Over Any holding over after the expiration of the term hereof, with or without the consent of Landlord, shall be construed to be a tenancy from month to month at the rents herein specified (prorated on a monthly basis) and shall otherwise be on the terms and conditions herein specified, so far as applicable; provided, however, if such holding over is without the consent of Landlord, Fixed Minimum Rent for such holdover period shall be two (2) times the Fixed Minimum Rent due for the last month of the lease term. 18.02 Successors and Assigns Except as otherwise herein provided, this Lease and all the covenants, terms, provisions and conditions herein contained shall inure to the benefit of and be binding upon the heirs, representatives, successors and assigns of each party hereto, and all covenants herein contained shall run with the land and bind any and all successors in title to Landlord. ARTICLE M: QUIET ENJOYMENT 19.01 Landlord's Covenant Upon payment by Tenant of the rents herein provided, and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the Leased Premises for the term hereby demised without hindrance or interruption by Landlord or any other person or persons lawfully or equitably claiming 08/09/11 19 Landlord .1�/ DRAFT 8/2/11 by, through or under Landlord; subject, nevertheless, to all the terms and conditions of this Lease. ARTICLE XX: MISCELLANEOUS 20.01 Waiver The waiver by Landlord of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained. No covenant, term or condition of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing. 20.02 Accord and Satisfaction No payment by Tenant or receipt by Landlord of a lesser amount than the monthly rent installments herein stipulated shall be deemed to be other than on account of the most current stipulated rent owed at that time, nor shall any endorsement or statement on any check or letter accompanying any check or payment as rent be deemed an accord and satisfaction. 20.03 No Partneishiw Landlord does not, in any way or for any purpose, become a partner of Tenant in the conduct of its business or otherwise or joint venture or a member of a joint enterprise with Tenant. 20.04 Force Maieure In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war, or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then the time allowed for performance for such act shall be extended by a period equivalent to the period of such delay. The provisions of this Section 20.04 shall not operate to excuse Tenant from the prompt payment of Fixed Minimum Rent, Percentage Rent, Additional Rent or any other payments required by the terms of this Lease. 20.05 Landlord's Liability If Landlord shall fail to perform any covenant, tern or condition of this Lease upon Landlord's part to be performed, Tenant may not terminate the Lease, and Tenant's sole remedies shall be money damages (except as set forth in the Rider) and specific performance. 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 if Landlord be a partnership, any of the partners comprising such partnership 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 as hereinbefore expressly provided. In the event of the sale or other transfer of Landlord's right, title and interest in the Leased Premises or the Shopping Center, Landlord shall be released from all liability and obligations hereunder. 20.06 Notices and Payments Any notice by Tenant to Landlord must be served by Federal Express or similar overnight delivery service or by certified mail, postage prepaid, addressed to Landlord at the place designated for the payment of rent, or at such other address as Landlord may designate from time to time by written notice. Any notice by Landlord (which may be given by Landlord or Landlord's attorney or management company) to Tenant must be served by Federal Express or similar overnight delivery service or by certified mail, postage prepaid, addressed to Tenant at the Leased Premises, or at such other address as Tenant may designate from time to time by written notice to Landlord. All notices shall be effective upon delivery or attempted delivery in accordance with this Section 20.06. Until otherwise notified in writing, Tenant shall pay all rent reserved herein and all other sums required under this Lease by check payable to the order of Landlord and shall forward the same to Landlord as herein provided. 08109111 20 Landlo Tenant DRAFT 8/2/11 20.07 Financial Statement The persons signing this Lease on behalf of Tenant hereby personally represent and warrant to Landlord that the financial statements delivered to Landlord prior to the execution of this Lease properly reflect the true and correct value of all the assets and liabilities of Tenant and Guarantors. Tenant acknowledges that in entering into this Lease, Landlord is relying upon such statements and Tenant shall supply Landlord updated financial statements of Tenant and Guarantors each Lease Year and from time to time as requested by Landlord. 20.08 Guarantors This Lease shall not be effective unless the persons, if any, listed in Section 1.01(o) hereof shall execute the Guaranty attached as Exhibit "C" of this Lease. 20.09 Captions and Section Numbers The captions, section numbers, article numbers and headings appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such section or articles of this Lease. 20.10 Definitions The word "Tenant" shall mean each and every person, firm or corporation mentioned as a Tenant herein, be the same one or more; and if there shall be more than one Tenant, any notice required or permitted by the terms of this Lease may be given by or to any one thereof, and it shall have the same force and effect as if given by or to all thereof. If there shall be more than one Tenant, they shall all be bound jointly and severally. 20.11 Partial Invalidity If any term, covenant or condition of this Lease, or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the remainder of this Lease or the application of such term, covenant or condition of this Lease shall be valid and enforceable to the fullest extent permitted by law. 20.12 Recording This Lease or a certificate or memorandum thereof prepared by Landlord may, at the option and expense of Landlord, be recorded. Tenant shall execute any such certificate, short form lease or memorandum upon demand by Landlord. 20.13 Entire Agreement The Lease, the Exhibits and Rider, if any, set forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the Leased Premises, and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than as herein set forth. All prior communications, negotiations, arrangements, representations, agreements and understandings, whether oral, written or both, between the parties hereto and their representatives are merged herein and extinguished, this Lease superseding and canceling the same. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to- writing and executed by the party . against which such subsequent alteration, amendment, change or modification is to be enforced. If any provision contained in any Rider hereto is inconsistent with any printed provisions of this Lease, the provision contained in such Rider shall supersede said printed provision. Tenant hereby acknowledges that (a) this Lease contains no restrictive covenants in favor of Tenant; and (b) this Lease shall not be deemed or interpreted to contain, by implication or otherwise, any warranty, representation or agreement on the part of Landlord that any department store or regional or national chain store or any other merchant shall open for business or occupy or continue to occupy any premises in or adjoining the Shopping Center during the term of this Lease or any part thereof, and Tenant hereby expressly waives all claims with respect thereto and acknowledges that Tenant is not relying on any such warranty, representation or agreement by Landlord either as a matter of inducement in entering into this Lease or as a condition of this Lease or as a covenant by Landlord. • Survival aeknewledging theA the eensequenees ef said waiver- are fully under-steed,:FenfiH4 hereby 08109111 21 Landlo Tenant :i/ DRAFT 8/2/11 eiEpr-essly waives the right te tFW by jwy in any aefien taken iNith r-espeet te this Lease a w the g M to inAerpese a ny et eff efe m «el,.:.... efa mature er '- ,t:e. eeding instituted against Tel}afA pufsuant to this Lease g—in this Lease to the — eentFaf , the Fepr-esefftatieas an u dprtakangs of Tenant h Lease It the f a « this Le e ea ,,,.ate of of h Y- . t• meems ,... f 20.15 Applicable Law This Lease and the rights and obligations of the parties arising hereunder shall be construed in accordance with the laws of the State where the Leased Premises are located (the "State "). 20.16 Consents and Approvals Whenever Landlord's consent or approval is required herein, such consent or approval shall not be deemed given until Landlord has provided such consent or approval in writing. Tenant shall pay Landlefd's fees A t:en , .:th Te.. a V s t re_- r andl__d's eensefft _ _ _, s b e b' d r dl d' 1 t: ..l dice «ee..,. e the«mis expressly •,i ,l With re nr eet to a ny pr ov i s i on th -Y ef: L ease h h e l J Y •a h la t provid th L h it t e ., no bl y .:thhel,] hl d J J T eensefft er- approval, Tenant shall not be entided te make any elaim fer-, and Tenant eNpr-essly waives any elaim s failure to co , :t bei u nde«nteed and a ., that Tee«t' sel shall edy s hll b 20.17 Authoritv. In the event Tenant hereunder shall be a corporation, the persons executing this Lease on behalf of Tenant hereby covenant and warrant that Tenant is a duly qualified corporation and all steps have been taken prior to the date hereof to qualify Tenant to do business in the State; all franchise and corporate taxes have been paid to date; all future forms, reports, fees and other documents necessary to comply with applicable laws will be filed when due; and those persons executing this Lease on behalf of Tenant are duly qualified and authorized to bind, and in fact do bind, the corporation. In the event Tenant hereunder shall be a partnership, either general or limited, the persons or entities executing this Lease on behalf of Tenant hereby covenant and warrant that Tenant is a duly qualified partnership and all steps have been taken prior to the date hereof to qualify Tenant to do business in the State, if required by law; all franchise and partnership taxes have been paid to date; all future forms, reports, fees and other documents necessary to comply with applicable laws will be filed when due; and those entities executing this Lease on behalf of partnership are duly qualified to bind, and in fact do bind, the partnership. This Lease shall be effective only when it is signed by both Landlord and Tenant. Tenant's submission of a signed Lease for review by Landlord does not give Tenant any interest, right or option in the Leased Premises. 20.18 Interpretation Both parties have read this Lease and had the opportunity to employ legal counsel and negotiate changes to the Lease. The Lease is the joint product of the parties and, in the event of any ambiguity herein, no inference shall be drawn against a party by reason of document preparation. 20.19 Brokers Tenant represents and warrants to Landlord that no broker or agent negotiated or was instrumental in negotiating or consummating this Lease, except for ROCK Commercial Real Estate, LLC. Tenant knows of no real estate broker or agent who is or might be entitled to a commission or compensation in connection with this Lease. All fees, commissions or other compensation payable to any broker as agreed to by Landlord, shall be paid by Landlord as per a separate agreement. Tenant shall hold Landlord harmless from all damages and shall indemnify Landlord for all damages paid or incurred by Landlord resulting from any claims asserted against Landlord by brokers or agents claiming through Tenant. 20.20 Mutual Release Landlord and Tenant each hereby releases the other and its respective employees, agents, customers, guests, licensees and invitees, and every person claiming by through or under either of them from any and all liability or 08109111 22 Landlord- Tenant DRAFT 8/2/11 responsibility (to them or anyone claiming by, through or under them by way or subrogation of otherwise) for any loss or damage to any property (real or personal) caused by fire or any other insured peril required to be covered by any insurance policies (per the terms of this Lease) for the benefit of either party, even if such loss or damage shall have been caused by the fault or negligence of the other party, its employees or agents, or such other tenant or employee or agent thereof. as 'New Leased pr-eposed New Leased Premises " °1......t:..« N fi e ") «d T°«.. «t ..1...11 1.....° .. per- d of ., «t.... a 21 \ days ('N fle D°..:,.d") f th d T eaaf t r s R ti T°«.. «t ..t th a ....t:..« of th N P fled then T enan t s h a ll b d eeme d to have ae e pt e d th New Le se d P ern :..°.. Sh :F «t .. ee t Vhe Nev T ° se d P rem i ses b .ti t° T °«dlerd a pr-ev ided h «, the Le e s h a ll t°_...:« °t° en th . .,ti e d. (6 day 11 the t t t' d .. ..l...11 h tl... a$ j�xvxxov�xxzS- - @3f.�i£$c�6�3 6� �30 �16c36� l?BCt9�. �19�2'�ef,� T °« ,•ro �nc ° vYaxvia -v. -i ° ef r-eje to re voke Thletiee, in whieh ease, the Lee—se sh—all P-enti-nue ko A-41 feree F—ind eafeet. go long as ..:th th .- ele,.,,t:..« a nd nabl° empeases . to r-ene vation e f New Le se d o e Fne Leased Pfemises. In the evefA the New Leased Pr-efaises in whieh the Tenant is r-eleeate deer ne t a :..t e f tl.° :d fi .l « «..1.,:.. ,.F..,...,...° feet .. spe eified in Seet:..« 1 ( e feet the e fi g inal Le se d D..°.. ices a nd th ..1.. nge i n the n e f s e f e e eentained in the New Leased Pfemises shall be deemed eff-eefive as efthe date en whieh Tenant eeetipies the New Leased Pfemises. Addkienal ReH4 shall be based en the squaFe feet ef the New Leased Pr- ' 20.22 Exhibits All the Exhibits attached to this Lease shall be deemed to be incorporated by reference and made a part hereof. ARTICLE XXI: SECURITY DEPOSIT 21.01 Amount of Security Deposit Tenant, contemporaneously with the execution of this Lease, has deposited with Landlord the sum set forth in Section 1.01 (1), the receipt of which is hereby acknowledged by Landlord. Said deposit shall be held by Landlord, without liability for interest, as security for the faithful performance by Tenant of all the terms, covenants and conditions of this Lease by said Tenant to be kept and performed during the term hereof. Tenant specifically agrees that any deposit held hereunder by Landlord may be commingled with any other funds of Landlord. 21.02 Use and Return of Security Deposit Should Tenant fail to keep and perform any of the terms, covenants and conditions of this Lease to be kept and performed by Tenant, Landlord may appropriate and apply said entire deposit, or so much thereof as may be necessary, to compensate Landlord for loss or damage sustained by Landlord due to such breach, without prejudice to its further rights and remedies. Should the entire security deposit or any portion thereof be appropriated and applied by Landlord for the payment of overdue rent or other sums due from Tenant hereunder, the Tenant shall, upon the written demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to restore said deposit to the original sum deposited. Should Tenant comply with all the terms, covenants and conditions of this Lease, the said deposit shall be returned in full to Tenant at the end of the term of this Lease or upon its earlier termination. ARTICLE XXII: TENANT COVENANTS; EASEMENTS 22.01 Tenant Covenants Notwithstanding anything to the contrary contained herein, 08/09/11 23 Landlord Tenant DRAFT 8/2/11 this Lease is subject to and made on the understanding that Landlord has granted and/or will grant certain restrictions and exclusive use covenants to other tenants of the Shopping Center (herein the "Tenant Covenants "). Tenant acknowledges that Tenant's use and/or occupancy of the Leased Premises in violation of any current or future Tenant Covenants would subject Landlord to substantial damages, and as such, Tenant acknowledges and agrees that any such violation by Tenant of any such Tenant Covenants shall constitute a default hereunder entitling Landlord to cancel this Lease or enjoin Tenant from violating such Tenant Covenants, or exercise any of the remedies stated in Article XV hereof and any other remedies available under the law of the State. Nothing contained in this Section 22.01 shall be construed to permit Tenant to expand the use restrictions set forth in Section 4.01 hereof. 22.02 Easements The Shopping Center is and/or may be encumbered and/or benefited from time to time by certain easements, development and operating covenants, and similar agreements. Tenant agrees that it shall abide by any such agreement, including as any such agreement may be amended from time to time in Landlord's sole discretion. Landlord shall have the right to enter into and/or terminate any such agreement in Landlord's sole discretion. ARTICLE XXHI: ADA COMPLIANCE 23.01 Americans With Disabilites Act Landlord agrees that at the time of delivery to Tenant all common areas, such as sidewalks and parking lots to the best of Landlord's knowledge will comply with the Americans with Disabilities Act of 1990 and the regulations promulgated thereunder. At Tenant's expense, Tenant agrees to design, furnish, and construct the Leased Premises to comply with the Americans with Disabilities Act of 1990.• Within ten (10) days after receipt, Landlord and Tenant shall advise the other party in writing, and provide . the other with copies of (as applicable), any notices alleging violation of the Americans with Disabilities Act of 1990 ( "ADA ") relating to any portion of the Property or of the Leased Premises; any claims made or threatened in writing regarding noncompliance with the ADA and relating to any portion of the Property or of the Leased Premises; or any governmental or regulatory actions or investigations instituted or threatened regarding noncompliance with the ADA and relating to any portion of the Shopping Center or the Leased Premises. IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year first above written. LANDLORD: SMPPENSBURG MARKETP ACE, LP By: ACL Realty Co General Partn By. Ste �:to P C ea � d,�1� Date: ��tucV �� • 20 l 08/09/11 24 Landlord Tenant DRAFT 8/2/11 TENANT: , SAM HAGGAG DB /A SAM 5 1 Ji 1116R Sam Haggag Date: RIDER 1. Provided Tenant is not in default of its obligations under this Lease, both at the time any option to extend is exercised and at the expiration of the previous term, then, Tenant shall have the right, option and privilege of extending the term of this Lease for one (1) five (5) year period to run consecutively by giving Landlord written notice of its intention to exercise said option; said notice shall be delivered to Landlord not less than six (6) months prior to the expiration of the original term. 2. In the event Tenant exercises the option set out in Paragraph 1 above, the extension of the term hereof shall be upon the term, covenants and conditions contained in the Lease (including without limitation the provision relating to Percentage Rental and Additional Rental, except for the lease term and Fixed Minimum Rent, which shall be as specified in Paragraph 1 of this Rider and Paragraph 1.01(h) of the Lease, respectively. Upon expiration of the renewal term, there will be no further right to renew. 3. Signage: Tenant, at Tenant's expense, shall be permitted to install signage on building fagade over the Premises and on the pylon sign where Blockbuster Video signage previously existed. All signage must conform to the sign ordinance for Shippensburg Township. The exact location and method of installation shall be subject to Landlord's approval, which such approval shall not be unreasonably withheld. 4. Access: Tenant shall have twenty -four hour a day access, seven days a week. 5. Parking: Tenant will have its pro -rata share of the parking on the Property. 08109/11 25 Landlord Tenant DRAFT 8/2/11 EXMIT "B" TO LEASE AGREEMENT DESCRIPTION OF LANDLORD'S WORK AND TENANT'S WORK Property shall be delivered "as is." Tenant, at Tenant's expense shall complete all necessary improvements to construct a diner -style restaurant, including any permits, inspections, connection fees, and furniture, fixtures and equipment. Tenant shall be responsible for all underground connections, drainage, grease trap, sanitary and storm water. Tenant shall provide Landlord with a copy of Tenant's floor plan and equipment plan fifteen (15) days after execution of the Lease Agreement. Landlord shall have the right to approve the plans, which such approval shall not be unreasonably withheld. 08/08/11 1 Landlord Tenant DRAFT 8/2/11 EMM1T "C" TO LEASE AGREEMENT GUARANTY In order to induce ( "Landlord ") to enter into that certain Lease Agreement dated as stated c � above ( "Lease ") between Landlord and Sam Haggag d/b /a .SRM IJ%NcR ( "Tenant"), and in consideration of the benefits inuring to the undersigned (the "Guarantor ") under said Lease, the receipt and sufficiency of which is represented by the Guarantor to Landlord to be sufficient and adequate, the Guarantor hereby unconditionally guarantees the performance of all of Tenant's obligations under the Lease, including, without limitation, the payment of rental as provided therein. This Guaranty shall remain in full force for the first five (5) years of the Lease. This Guaranty shall be binding upon Guarantor and Guarantor's heirs, legal representatives, successors and assigns, and shall inure to the benefit of Landlord and its successors and assigns. If there is more than one Guarantor, the liability of each Guarantor shall be joint and several. This Guaranty is a guaranty of payment and performance and not of .collection. Guarantor hereby waives notice of acceptance of this Guaranty agreement and all other notices in connection herewith or in connection with the liabilities, obligations and duties guaranteed hereby, including notices to it of default by Tenant under the Lease, and hereby waives diligence, presentment, protest and suit on the part of Landlord in the enforcement of any liability, obligation or duty guaranteed hereby. Guarantor further agrees that Landlord shall not be first or concurrently required to enforce against Tenant or any other person, any liability obligation or duty guaranteed hereby before seeking . enforcement thereof against Guarantor. The liability of Guarantor shall not be affected by any indulgence, compromise, settlement or variation of terms which may be extended to Tenant by Landlord, or agreed upon by Landlord or Tenant, and shall not be affected by any assignment or sublease by Tenant of its interest in the Lease, nor shall the liability of the Guarantor be affected by the insolvency, bankruptcy (voluntary or involuntary), or reorganization of Tenant, nor by the voluntary or involuntary liquidation, sale, or other disposition of all or substantially all of the assets of Tenant, or by the release of any other guarantor. Landlord and Tenant, without notice to or consent by Guarantor, may at any time or times enter into such modifications, extensions, amendments or other covenants respecting the Lease as they may deem appropriate, and Guarantor shall not be released thereby but shall constitute to be fully liable for the performance of all obligations and duties of Tenant under the Lease as so modified, extended or amended. Guarantor further agrees (1) to indemnify and hold harmless Landlord from and against any claims, damages, expenses, or losses, including to the extent permitted by law, the reasonable fees of an attorney, resulting from or arising out of any breach of the Lease by Tenant or by reason of Tenant's failure to perform any of its obligations thereunder, and (2) to the extent permitted by law, to pay any costs . or expenses, including the reasonable fees of an attorney, incurred by Landlord in enforcing this Guaranty. The Guarantor acknowledges that Landlord may assign its rights under the Lease to an institutional investor as security for a loan to be made by such institutional investor to Landlord, and as long as any indebtedness of Landlord shall be outstanding and such assignment of the Lease shall exist, such institutional investor assignee shall be entitled to bring any suit, action or proceeding against the undersigned for the enforcement of any provision of this Guaranty, and it shall not be necessary in any such suit, action or proceeding to make Landlord a party thereto. This Guaranty may not be modified or amended without the prior written consent of such assignee of Landlord's interest in the Lease, and any attempted modification or amendment without such consent shall be void. All existing and future advances by Guarantor to Tenant and all existing and 08109111 1 Landlord Tenant DRAFT 8/2/11 future debts of Tenant to any Guarantor shall be subordinated to all obligations owed to Landlord under the Lease and this Guaranty. Guarantor assumes the responsibility to remain informed of the fmancial condition of Tenant and of all other circumstances bearing upon the risk of Tenant's default, which reasonable inquiry would reveal, and agrees that Landlord shall have no duty to advise Guarantor of information known to it regarding such condition or any such circumstance. Landlord shall not be required to inquire into the powers of Tenant or the officers, employees, partners or agents acting or purporting to act on its behalf, and any indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. Each Guarantor hereby represents and warrants to Landlord that such Guarantor has received a copy of the Lease, has read or had the opportunity to read the Lease, and understands the terms of the Lease. The provisions in the Lease relating to the execution of additional documents, legal proceedings by Landlord against Tenant, severability of the provisions of the Lease, interpretation of the Lease, notices, waivers, the applicable laws which govern the interpretation of the Lease and the authority of Tenant to execute the Lease are incorporated herein in their entirety by this reference and made a part thereof. Any reference in those provisions to "Tenant" shall mean each Guarantor and any reference in those provisions to the "Lease" shall mean this Guaranty. If any one or more of the provisions of this Guaranty shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Guaranty, and this Guaranty shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. This Guaranty shall be construed according to the laws of the state where the Leased Premises are located (the "State"). By execution hereof, the undersigned specifically consent to this choice of law designation and consent that all actions or proceedings arising directly, indirectly or otherwise in connection with, out of, related to, or from this Guaranty or the Lease shall be litigated only in the courts located in the State, and the undersigned, and (i) consent and submit to the in personam jurisdiction of any state or federal court locating within the State, (ii) waive any right to transfer or change the venue of litigation brought against the undersigned, and (iii) agree to service of process, to the extent permitted by law, by mail. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND ACKNOWLEDGING THAT THE CONSEQUENCES OF SAID WAIVER ARE FULLY UNDERSTOOD, THE UNDERSIGNED HEREBY EXPRESSLY WAIVE THE RIGHT TO TRIAL BY JURY, THE RIGHT TO INTERPOSE ANY DEFENSE BASED UPON ANY STATUTE OF LMTATIONS, ANY CLAIM OF LACHES AND ANY SET -OFF OR COUNTERCLAIM OF ANY NATURE OR DESCRIPTION IN ANY ACTION OR PROCEEDING INSTITUTED AGAINST THE UNDERSIGNED OR ANY OTHER PERSON LIABLE ON THE LEASE. IN WITNESS WHEREOF, Guarantor(s) has/have caused this instrument to be executed this I o� day of AllGu6 ' 2011. =' t 08/09/11 2 Landlord Tenant_ /� . DRAFT 8/2/11 EXffiBIT "D" EXCLUSIVE USES SE IPPENSBURG MARKETPLACE SHIPPENSBURG, PA Notwithstanding anything to the contrary contained in the Lease, Tenant will not be permitted to use the Leased Premises for any of the following uses, purposes or businesses: (i) A grocery store or supermarket; (ii) the retail sale of items of spirituous liquors (including beer and wine) and food for off - premises consumption (whether by humans or animals), in an area larger than 200 square feet or equal to 5% of the selling (including display) space and including half the aisles adjacent to the display area; (iii) . the sale of drugs or other products which are required by law to be dispensed by a registered pharmacist; (iv) the sale of gasoline; (v) adult or sexually explicit or oriented stores, including bookstores or video stores or any business featuring the display of male and/or female dancers or so -called "strip tease" or "adult entertainment establishment"; (vi) massage parlors; (vii) any business involving the sale, leasing, storage, servicing, repair, or washing of automobiles, trucks, boats, recreational vehicles and/or mobile homes; (viii) automotive parts stores; (ix) lounges, bars, taverns, nightclubs, discos and other establishments of like type; (x) theatres; (xi) churches; (xii) bingo parlors; (xiii) bowling alleys; (xiv) skating rinks; (xv) game or video /arcade rooms or amusement centers; (xvi) billiard or pool halls; (xvii) cafeterias; (xviii) schools; (xix) health spas, fitness centers, karate, gymnasium, exercise studios, or similar businesses; (xx) meeting halls or other places of public assembly; (xxi) auditoriums; (xxii) dance halls; (xxiii) lotto or off -track betting businesses; (xxiv) outdoor plant nurseries; (xxv) auction houses or flea markets; (xxvi) businesses whose customers generally remain for more than sixty (60) minutes at a time; (xxvii) animal or veterinary clinics; (xxviii) so called "head shops" or businesses which sell drug related paraphernalia; (xxix) hotels, motels, tourist courts, or sleeping apartments/lodging rooms or living quarters; (xxx) laundries, laundromats or any dry cleaning businesses (other than a business devoted solely to the drop -off and pick -up of dry cleaning); (xxxi) mortuaries or funeral parlors; (xxxii) a business operation which regularly or with significant frequency sells merchandise of the types or qualities now commonly known as "odd lot," "close out," "clearance," "discontinued," "cancellation," "second," "factory reject," "sample," "floor model," "demonstrator," "obsolescent," "over- stock," "distressed," "bankruptcy," "fire sale," or "damaged"; (xxxiii) any purpose or business which is noxious or unreasonably offensive because of the emission of noise, smoke, dust or odors; 08109111 3 Landlo Tenant DRAFT 8/2/11 (xxxiv)any business using outdoor space in its regular operations, such as lumber yards and the like; (xxxv) any non - retail or office or storage operations except office and storage operations which are part of the conduct of a retail business in the Shopping Center; (xxxvi)the sale, rental, and/or distribution of prerecorded video cassettes, video tapes, video discs or other video software (including CD -ROM) and/or any substitutes for, or items which are a technological evolution of, the foregoing items. ( xxxvii) The operation of an Italian Restaurant or Pizza Parlor (xxxviii) the operation of a Sandwich Shop or Sub Shop 08/09/11 4 Land[, nant DRAFT 8/2/11 EDIT "E" TENANT SIGNAGE CRITERIA SHIPPENSBURG MARI ETPLACE SMPPENSBURG, PA A. GENERAL REQUIREMENTS: 1. The sign company or Tenant must submit to Landlord for written approval detailed drawings showing the size, layout, design and color of the proposed sign. 2. All required permits for signs shall be obtained by the sign company and must comply with all local codes and ordinances. 3. All signs shall be constructed and installed at Tenant's expense. 4. Tenant shall be responsible for complying with all signage requirements /criteria stipulated herein. 5. Tenant's signs shall be limited to letters designating Tenant's store name and/or type of store only, and shall contain no advertising devices, slogans, symbols, or marks other than Tenant's store name and/or type of store. Crests, corporate shields, graphic design or logos shall be permitted subject to Landlord approval only. 6. Landlord reserves the right of final approval on the proposed signage design and method of installation. B. DESIGN REQUIREMENTS: 1. Letters may not overlap with top or bottom edge of the building's sign band. Minimum setback from the edge of each lese line shall be 1' -6 ". 2. Signs shall be composed of individual illuminated letters with exposed raceways. 3. The size of letters on Tenant's store front sign shall be limited to a maximum height of 24 ". 4. The overall length of the sign shall not exceed 2/3 the width of the storefront and should be centered both horizontally and vertically within the assigned Tenant fascia area. 5. Raceways are to be surface mounted on the tracks provided. Maximum raceway size, 7" high x 7 "inches deep. Finish color on raceway shall match building. C. CONSTRUCTION REQUIREMENTS: 1. Letters are to be channel type with 3/16" Plexiglass faces lighted from behind with neon tubing. Letter returns are to be aluminum with a uniform color. Letter depth is to be 5" for even dispersion of the illumination. 2. All letters shall be fabricated from .090 thick aluminum with .063 thick (returns). Back illuminated (halo type) or external lighting of signs is prohibited. Retainage clips to match sign returns. - 3. All fasteners, bolts, clips and brackets to be made of non - corrosive material (painted finish to match building). 4. Letters shall be illuminated by 12mm neon tubing so as to provide even illumination and be powered by 30MA transformers. D. STIPULATIONS: 1. No animated, flashing or audible signs will be permitted. 2. No exposed lamps, cross -over conduit, or tubing will be permitted. 3. All signs and their installations shall comply with all local building and municipal codes. 4. Painted lettering/paper /stickers will not be permitted. 5. Electrical service to all signs shall be on Tenant's electrical meter. 6. Tenant is responsible for repairing any damage to in -place construction caused by signage installation or removal. 08/09/11 5 Landlo Tenant EXHIBIT "A1 " �. r ra Y z` z ` 7 ,.A n Yr• i d 1�1 �1nx Z . r } r z Legal Descriptiont y of - e Lot rla x a�_� :a Shlppcnsbir,rg Mark etplacc J a l t . Shippcnsburg Tdwnsliip, Cumberland County Pennsylvania a. 3 ' Beginning at a point in Baltimore Road:(S:R. 3001) at a common property line of Lot 44 and iR ' Lot 45 of the Shippensbur; Marketplace Subdivision; thence from said point of beginning through Baltimore Road (S.R. 3001) and along Lot "S, North 47 degrees 18 minutes 12 seconds East; a distance of 802.32 feet to a point at a common property corner of Lot 44, Lot 45 and Lot Kl, thence along Lot VI , South 43 degrees 12 minutes 00 seconds Fast, a distance of 555.50 feet 3 r to a point at a common property corner of Lot 114 and Lot itl; thence along Lot 41, along lands 1 ' ;:now or late of Wade and Unda Asper and along lands now or late of Galen S. and Jeanette A. Asper, South 47 degroes IS minutes 24 seconds West, a distance of 798.56 fect to a point in - Baltimore Road (S.R. 3001); thetco along Baltimore Road (S.R. 3001), North 43 degrees 35 1 w rntnutes 16 seconds West a distance of 77.46 fecuo a point; thence through Baltimore Road t l fi (S : x 300 1) and along Lot "''4B, North 7 degm.es 19 minutes 24 seconds East, a distance of f -,_ r yxt 15 feet;ca.a point; thence continuing along Lot t:4B, by a curve, curving to the Icfr, having a ;,j"' `tatlws''.of 27.72 feet and an arc length of 43.27 feet to a point; thence continuing along Lot lt4B,. )^`� 4 N6M 47 degrees 18 minutes 24 seconds East, a distance of 139.70 feet to a point; thence along 4 7 o� {• t, wn r r >�,.I� �,.T�i•. -'� {�� 4�,�•i 4 ., A and Lot A, N orth 42 degrees 41 minutes 48 seconds W est, a distance of 372.65 feet to * t �, a pomt.at a common property comer of Lot''4 and Lot R4A; thence along Lot 94A, South 46 a „- rr tlegiees 44 minutes 50 seconds \Vest, a distanec of 143.04 feet to a point; thence continuing 1 i' along LOt�4A, by a can e, curving to the left, },crying a radius of 27.72 feet and an arc length of ;i: Ili : 9:54 feet to a point; thence along same and through Baltimore Road (S.R. 3001), South 46 it degrees 44 nninutes SU seconds West, a distance of.32.99 feet to a point in Baltimore Road (S.R_ ” "; 3001); thence along Baltimore Road (S.R. 3001), North 43 degrees 35 minutes •16 seconds' West;. •;. _;: ,:;', kk a distance of 162.5 l •feet to a point; said.pbint being the place of beginning. i Said lot contains a gross area of 371,990.92 square feet or 8.5397 acres and a net area of I[ p [ r . • .364 feet or'8.3600 acres to the Dedicated Right -of -Way Line-, o' )Y ¢ r e r Legal Description y e tsr ; F n x� LoQIf4A ba j Shippcnsburg Marketplace Shippcnsburg Township; Cumberland County Pennsylvania �',: h• z Ft t , Beginning at a point in Baltimore Road (S.R.3001) at a common property line of Lot 94 and f Lot,94A of the Shippensburg Marketplace Subdivision; thence from said point of beginning r through Baltimore Road (S.R. 3001) and along Lot t!4 the following four (4) courses: North 46 degrees 44 minutes 50 seconds East a distance of 32.99 feet to a point; thence ' By a curve, curving to the right, having a radius of 27.72 feet and an arc length of ! C 43.54 feet to a point; 3. thence North 46 degrees 44 minutes 50 seconds East, a distance of 143.04 feet to a point; thence 'South 42 degrees 41 minutes 48 seconds East, a distance of 162.94 to a point }t t37 �w ° - at a common property comer of Lot :14A and Lot "413; thence along Lot 94B and through * alttrnorc Road (S.R. 3001), South 46 degrees 44 minutes SO seconds West, a distancc.6 f �ffjr �� t F t% T.;201 37 fe:etto a.point.in Baltimore Road (S'R. 3001); thence along Baltimore Road (S R;. ' ` a r � WWII r .. OOT);Nonh;43 degrees 35 minutes 16 seconds West a distance of. 135.22 feet to a point; ­'d omt bttttp the place of beginning. " Sa'nd'lot contains a gross area of a 1,936,65 square feet or 0 7332 acres and a net area of r: .f X 27 529.16 feet nr0:6320 acres to the Dedicated Right - of Wa � Line:: rr I tN 6'12' E 768.38' _ 80 2.32(LOTAL x siou. s 7. --. _. .v.rm c nT aronm� r..vxnuo aeuson t :..� 1 n i! I u i . a 1� • i _ I N i t E 5 iii @eEEEE:iiiiiiiiiiii ' rG•'.`iii — l „7 fi 8 1 a I �� m —• i 4 I� D � ��• I o a s �=n� y g � a 1 f l F �> 0� � i — i I•� i I Iii. i� � r� a I S � � a ! 1n!O Ji j:':�i:' ~ ' I ".: _ i l " �X }, Y o OS tt =� • � I } U '�'• I $ hhh ! � 4r :.:.: m a i .A L • i'i i !i`<i:i�E i i i" - n lr.{p i E^ NN D N E i:E ...... E�jiE i ' a :. s:' u C I " �MNm 7ri � _ � 11 1 B� S i::JH�9ii.... ::: I O j k 139.70' 800.78' i a N 471824 E .Y x -� (11101 ,99'88[ � � 1 A.v _ . �. xx.n.7a•c .nrx.•c'M „Yl•91.L4 'S \! . �d m NN I •�•� �I - �.a�YJ 4x!I.�IOR .gnx1MA i kl 1. y ' �;'. ' .ICt{l lvMi.l a+wq On 1A1t INTir^Y'l /.11T I{ 3 Y p • 'fS4,•'' I � � ° ...:eu. s� J area 92 U " 5 °• -�' : LI:!.'�r/''�. - . J� • ,.s... : ate n..w•_ .:.;' - t.. SHIF'F'ENSBUFEC3.� `1 1'Fly` $1 f:. we�wna Iv1AF TGET PLACE awsl.:::a► :k -'-• ..—'_ --_ .-.._._, • °,�.' .' :. 4CL .. . i Lc,-al Description 1' Lot 1141-3 Shippensburg Marketplace Shippensburg To wnship, Cumberland County k ' Pennsylvania F. Beginning at a point in Baltimore Road (S.R, 3001) at a common property line of Lot 94A 'lid and Lot k4B of the Shippensburg Marketplace Subdivision; thence from said point of beginning !. through Baltimore Road (S.R. 3001) and along Lot 74A, lr'onh 46 degrees 44 minutes 50 t _ a seconds -East, a distance of 201.37 fee to a point at a common property corner of Lot 44, Lot and, Lot U4B; thence along Lot 'A, South 42 degrees 41 minutes 48 seconds bast, a distance s of?09.71 feet to a point: thence South 47 degrees 18 minutes 24 seconds West, a distance of r 139.70 fete to a point; thence continuing along same, by a curve, curving to the right, having a radios of 27.72 feet and an are length of 43.27 feet to a point; thence through Baltimore Road (S.R. 3001), South 47 degrees 18 minutes 24 seconds a distance of 31.15 feet to a point; y thence alone Baltimore Road (S.R. 3001), Norih 43 degrees 35 minutes 1.6 seconds West a .r . distance of 1803! feet to a point: said point Writ the Place of beginning. Said lot contains a gross area of 40,680.91. square feet or 0.9339 acres and a net area of r, l 34,964.62 feet or 0.8027 acres to the Dedicated Right -of -Way Line. i .it t t ! 'F I f i i. I I I h , .1 „ rr. 1 , (ti A QLErb-OFF-j f ThE ;r..RBT C� 0 T C'JMBERLAND PES YLVAMIA�dT}� Helen L. Gemmill PA#60661 Kimberly M. Colonna PA#80362 McNees Wallace &Nurick LLC 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 Tel. 717-232-8000 Fax. 717-237-5300 Attorneys for Defendant Shippensburg Marketplace, LP ESSAM M. HAGGAG, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, V. NO. 13-2258 SHIPPENSBURG MARKETPLACE, LP Civil Division - Law Defendant. SHIPPENSBURG MARKETPLACE, LP'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Shippensburg Marketplace, LP ("Marketplace")by and through its undersigned counsel, states the following preliminary objections to Plaintiff's Complaint: 1. Plaintiff initiated this action by filing a complaint on April 25, 2013. 2. . The Complaint alleges that Plaintiff entered into a lease (the "Lease") with Marketplace by which Plaintiff leased a premises (the "Premises") for the purpose of operating a 1 restaurant. Complaint, ¶3. The Complaint further alleges that Marketplace violated the Lease by locking Plaintiff out of the Premises.' Complaint, ¶ 12. 3. The Complaint asserts the following causes of action: Count I - Violation of the Landlord Tenant Act; Count 11 - •Intentional Infliction of Mental Distress; Count III—Breach of Contract; and Count IV—Fraudulent Misrepresentation. First Preliminary Objection—Pa. R. Civ. P. 1028(a)(4) Legal Insufficiency of Counts I, II,III, and IV 4. Pa. R. Civ. P. 1028(a)(4)provides that a party may assert a preliminary objection based upon the legal insufficiency of a pleading. 5. As noted above,the claims in the Complaint arise out of the lease of the Premises from Marketplace to Plaintiff. 6. The Lease is attached to Plaintiff's Complaint as Exhibit A. 7. Section 10.02 of the Lease states as follows: Notice to Landlord of Default. In the event of any act or omission by Landlord which would give Tenant the right to terminate this Lease or claim a partial or total eviction, or make an claim against Landlord for the payment of money, Tenant will not make such claim or exercise such right until it has given written notice of such act or omission to a Landlord; and (b)the holder of any mortgage as to whom Landlord has instructed Tenant to give copies of all of Tenant's notices to Landlord; and after thirty (30) days shall have elapsed following the giving of such notice, during which such parties or any of them has not commenced diligently to remedy such act or omission or to cause the same to be remedied. Nothing herein contained shall be deemed to create any rights in Tenant not specifically granted in this Lease or under applicable provisions of law. ' For purposes of these preliminary objections only, Marketplace does not dispute the factual allegation of the Complaint. If an answer is required, Marketplace will deny the factual allegations, which Marketplace contends are false and inaccurate. 2 J Complaint, Ex. A, p. 1.2 (emphasis added). 8. Section 20.06 of the Lease states, in part, that"Any notice by Tenant to Landlord must be served by Federal Express or similar overnight delivery service or by certified mail, postage prepaid, addressed to Landlord at the place designated for the payment of rent, or at such other address as Landlord may designate from time to time by written notice." Complaint, Ex. A, p. 20. 9. Plaintiff's Complaint fails to allege that Plaintiff complied with the notice requirements set forth in the Lease prior to making the claims in the Complaint against Marketplace. 10. Plaintiff's failure to comply with the notice requirements is apparent from the face of the Lease in that Plaintiff alleges that Marketplace locked Plaintiff out of the Premises on April 6, 2013 and the Complaint was filed less than 30 days later, on April 25, 2013. 11. Pursuant to the Lease, Plaintiff was contractually bound to comply with the notice requirements prior to initiating any claims for damages against Marketplace. 12. Because Plaintiff failed to comply with his contractual obligation to give notice prior to filing suit, all of Plaintiff's claims should be dismissed as legally insufficient. WHEREFORE, Shippensburg Marketplace, LP requests that Plaintiff s Complaint be dismissed in its entirety for legal insufficiency. Second Preliminary Objection—Pa. R. Civ. P. 1028(a)(4) Lestal Insufficiency of Counts II and IV 13. If the entire Complaint is not dismissed as a result of Plaintiff s failure to comply with the notice requirements of the Lease, Count II and IV of the Complaint should be dismissed for legal insufficiency under the gist of the action doctrine. 3 14. Count II of the Complaint asserts a claim of"Intentional Infliction of Mental Distress"based upon the allegation that Marketplace locked Plaintiff out of the Premises in violation of the Lease. 15. Count IV of the Complaint asserts a claim of"Fraudulent Misrepresentation" based upon the allegation that Marketplace made a misrepresentation to Plaintiff about the assignment of the Lease with the intention of locking Plaintiff out of the Premises in violation of the lease. 16. Plaintiff's claims of Intentional Infliction of Mental Distress and Fraudulent Misrepresentation are based upon the same factual allegations as Plaintiff's claim for Breach of Contract in Count III of the Complaint. 17. Plaintiff's claims of Intentional Infliction of Mental Distress and Fraudulent Misrepresentation duplicate the breach of contract claim and are wholly dependent on the terms of the Lease. 18. The gist of the action doctrine prohibits a party from re-casting ordinary breach of contract claims into tort claims. 19. Accordingly, Count II (Intentional Infliction of Mental Distress) and Count IV (Fraudulent Misrepresentation) of Plaintiff's Complaint are barred by the gist of the action doctrine. WHEREFORE, Shippensburg Marketplace, LP requests that Count II and IV of Plaintiff's Complaint be dismissed for legal insufficiency. 4 Third Preliminary Objection—Pa. R. Civ. P. 1028(a)(4) Lellal Insufficiency of Count II 20. Plaintiff's claim for Intentional Infliction of Mental Distress is also legally insufficient because the Complaint does not set forth a sufficient factual basis for that claim. 21. A claim for Intentional Infliction of Mental (or Emotional) Distress requires extreme and outrageous conduct that resulted in bodily harm. 22. Plaintiff's Complaint makes absolutely no allegation that he suffered bodily harm. 23. Plaintiff's allegation that Marketplace locked him out the Premises after Plaintiff had already suspended his restaurant operations in that Premises does not constitute extreme and outrageous conduct, and therefore, does not provide a sufficient factual basis for Plaintiff's claim of Intentional Infliction of Mental Distress. 24. Accordingly, Count II (Intentional Infliction of Mental Distress) of Plaintiff's Complaint should be dismissed for legal insufficiency. WHEREFORE, Shippensburg Marketplace, LP requests that Count II of Plaintiff's Complaint be dismissed for legal insufficiency. Fourth Preliminary Objection—Pa. R. Civ. P. 1028(a)(4) Lelzal Insufficiency of Claims in Counts II and IV 25. Plaintiff's Complaint alleges that Marketplace "orally agreed"to sublease the Premises and "also agreed"to allow Yasser El Hewarry to assume the Lease for part of the Premises. Complaint, ¶¶ 7-8. 26. Plaintiff's claims of Intentional Infliction of Mental Distress and Fraudulent Misrepresentation are based, in part, upon the alleged oral agreements to sublease and assign the Premises. 5 27. Paragraph 11,01 of the Lease states, in part, as follows: Consent Required. Tenant shall not voluntarily or involuntarily assign this Lease in whole or in part, nor sublet all or any part of the Leased Premises without following the procedures detailed herein and the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent in any subsequent assignment or subletting. The foregoing shall be construed to include a prohibition against any voluntary or involuntary assignment or subletting arising by operation of law. In the event that Tenant receives a bona fide written offer from a third party for the sublease or assignment of the Leased Premises,Tenant shall forthwith notify Landlord in writing attaching a copy of said offer, of Tenant's desire to sublet or assign this Lease upon the terms of said offer,whereupon Landlord shall have thirty (30) days to accept or reject said assignment or sublease, or at Landlord's sole option cancel and terminate this Lease, including the right to enter into a direct lease with the proposed assignee of subtenant before or after such termination. Complaint, Ex. A, p. 13 (emphasis added). 28. Plaintiff s Complaint does not attach any writing confirming the alleged agreement to sublease the Premises or the alleged agreement to allow another person to assume the Lease as-required under Pa. R. Civ. P. 1019(i). 29. Plaintiff s Complaint does not attach any written consent of the landlord to the subletting or assignment of the Lease as required under Pa. R. Civ. P. 1019(i). 30. Thus, Plaintiff s claims are based upon alleged oral agreements. 31. . Plaintiff s claims based upon oral agreements to sublease and assign the Lease are legally insufficient because the Lease requires any such agreements to be written. 6 WHEREFORE, Shippensburg Marketplace, LP requests that Plaintiff's claims in Count II and IV be dismissed to the extent that they are based upon alleged oral agreements. McNEES WALLACE &NURICK LLC By Helen L. Gemmill, PA#60661 Kimberly M. Colonna, PA#80362 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 Tel. 717-232-8000 Fax. 717-237-5300 h2emmill9mwn.com kcolonna @mwn.com Dated: May 17, 2013 7 a CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below: By first class mail postage prepaid: Richard H. Wix, Esq. Wix, Wenger& Weidner 4705 Duke Street Harrisburg, PA 17109-3041 Counsel for Plaintiff Kimber y M. Colonna Date: May 17, 2013 PRAECIPE FOR LISTING CASE FOR ARGUMENT S' (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matteK th&4hex Argument Court.) CAPTION OF CASE (entire caption must be stated in full) SHIPPENSBURG MARKETPLACE LP No. 13-2258 Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to the Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Richard H.Wix, Esq.,Wix Wenger&Weidner,4705 Duke Street, Harrisburg, PA 17109-3041 (Name and Address) (b) for defendants: Kimberly M. Colonna, McNees Wallace&Nurick LLC, 100 Pine St., Harrisburg, PA 17101 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for 4. Argument Court Date: August 9,2013 Kimberly M. Colonna SigrujA#1 Print your n—ame Defendant Date: 07/17/2013 Attorney for 1.Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2.The moving party shall file and serve their brief 14 days prior to argument. 3.The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary)after the case is relisted. ' 13f,UG -8 A=i10: �` CUMBERLAND C ll T PENNSYLVANIA ESSAM M. HAGGAG, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 13-2258 — CIVIL SHIPPENSBURG MARKETPLACE, : CIVIL ACTION — LAW LP, Defendant : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please mark the above-captioned matter as discontinued. Respectfully Submitted, WIX, WENGER & WEIDNER By (`� Richard H. Wix, Esq., ID #07274 4705 Duke Street Harrisburg, PA 17109-3041 (717) 652-8455 Dated: SY a//3 Counsel for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 8th day of August, 2013, I, Gaye Crist, an employee of the firm of Wix, Wenger & Weidner, attorneys for Plaintiff, hereby certify that I served the within Praecipe to Discontinue this date by faxing a copy and by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Kimberly M. Colonna, Esq. McNees Wallace & Nurick P.O. Box 1166 Harrisburg, PA 17108-1166 WIX, WENGER & WEIDNER LU Gaye wi ist