HomeMy WebLinkAbout13-2933 f Supreme Co'ARennsylvania
COUr �OfrCO�In1Y>I�O For Prothonotary Use Only: �/
C0 ve She't �'/
C�i1 .S
Docket No: i' r
CUMB�FtLNb
County
The information collected on this form is used solely for court administration purposes. This form does not
supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court.
Commencement of Action:
S J Complaint 0 Writ of Summons 0 Petition
0 Transfer from Another Jurisdiction 0 Declaration of Taking
E
C Lead Plaintiff's Name: Lead Defendant's Name:
PR STONEHEDGE SQUARE LP BI CHEN d /b /a GREAT WALL BUFFET
T
Dollar Amount Requested: X3 within arbitration limits
I Are money damages requested? IM Yes 0 No (check one
0outside arbitration limits
0
N Is this a Class Action Suit? 0 Yes xi No Is this an MDJAppeal? 0 Yes 0 No
A Name of Plaintiff /Appellant's Attorney: Peter A. Lesser, Esquire
0 Check here if you have no attorney (are a Self- Represented [Pro Se] Litigant)
Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your
PRIMARY CASE. 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
0 Intentional 0 Buyer Plaintiff Administrative Agencies
0 Malicious Prosecution 0 Debt Collection: Credit Card 0 Board of Assessment
0 Motor Vehicle xa Debt Collection: Other 0 Board of Elections
0 Nuisance Commercial Lease 0 Dept. of Transportation
0 Premises Liability 0 Statutory Appeal: Other
S 0 Product Liability (does not include 0 Employment Dispute:
mass tort)
E 0 Slander /Libel/ Defamation Discrimination
C 0 Other: 0 Employment Dispute: Other 0 Zoning Board
T, 0 Other:
I 0 Other:
O MASS TORT
0 Asbestos
N 0 Tobacco
0 Toxic Tort -DES
0 Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS
0 Toxic Waste 0 Ejectment 0 Common Law /Statutory Arbitration
B 0 Other: 0 Eminent Domain /Condemnation 0 Declaratory Judgment
0 Ground Rent Mandamus
0 Landlord /Tenant Dispute 0 Non - Domestic Relations
0 Mortgage Foreclosure: Residential Restraining Order
PROFESSIONAL LIABLITY 0 Mortgage Foreclosure: Commercial 13 Quo Warranto
0 Dental 0 Partition 0 Replevin
0 Legal 0 Quiet Title 0 Other:
0 Medical 0 Other:
0 Other Professional:
Updated 1/1/2011
NOTICE
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Rule 205.5. Cover Sheet
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
PR Stonehedge Square LP C
Plaintiff
vs
Bi Chen d /b /a Great Wall Buffet 13 ,a9v
Defendant w
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 AN 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1- 800 - 990 -9108
717 - 249 -3166
a
�'
6
SIRLIN LESSER & BENSON, P.C.
123 South Broad Street, Suite 2100
Philadelphia, PA 19109
(215) 864 -9700
By: Peter A. Lesser, Esquire
Identification No. 59433 Attorneys for Plaintiff
PR STONEHEDGE SQUARE LP COURT OF COMMON PLEAS
By Its Agent: Vastgood 7 Property CUMBERLAND COUNTY
Portfolio Mgmt, LLC :
44 South Bayles Avenue
Port Washington, NY 11050 -3765
V'
BI CHEN d/b /a GREAT WALL BUFFET NO.
Stonehedge Shopping Center :
950 Walnut Bottom Road
Carlisle, PA 17013
COMPLAINT — CIVIL ACTION
BREACH OF CONTRACT — DAMAGES
Plaintiff, through its attorneys, Sirlin Lesser & Benson, P.C., sets forth the
following cause of action:
1. Plaintiff is PR STONEHEDGE SQUARE LP, a Pennsylvania limited
partnership. Its managing agent is Vastgood 7 Property Portfolio Mgmt, LLC located at 44
South Bayles Avenue, Port Washington, NY 11050. Plaintiff is the owner of commercial
property known as the Stonhedge Shopping Center in Carlise, Pennsylvania having acquired it
from the prior owner.
2. Defendant is BI CHEN, an adult individual d/b /a GREAT WALL BUFFET and
regularly conducts business at the Stonehedge Shopping Center, 950 Walnut Bottom Road,
Carlisle, PA 17013.
3. On or about June 6, 2001, the predecessor of Plaintiff and Defendant entered
into a Lease Agreement for the rental of approximately 4,400 square feet of commercial space
located at the Stonehedge Shopping Center, 950 Walnut Bottom Road, Carlisle, PA 17013 for a
term of ten (10) years which expired on March 31, 2012. A true and correct copy of Lease
Agreement is attached hereto as Exhibit "A" and made a part hereof.
4. Pursuant to the Lease, Defendant is responsible for the payment of monthly rent in
the amount of $5,342.74 plus common area maintenance charges and real estate taxes.
5. Defendant is in default of the terms of the Lease.
(a) Defendant has failed to pay rent and proper charges as of May 15, 2013 in
the amount of $16,530.07, as set forth on the Tenant Ledger attached as Exhibit 'B" and made a
part hereof.
(b) Pursuant to Section 23.02 of the Lease, Defendant is also responsible for
the payment of a late fee of 10% on unpaid balances. Late fees are assessed in the amount of
$1,653.01.
6. Despite repeated demand; Defendant has refused and continues to refuse to pay
any or all of the remaining balance due to Plaintiff.
7. By letter to Defendant dated February 7, 2013, Plaintiff provided a notice of
default to Defendant. A true and correct copies of said letter is attached hereto as Exhibit "C" and
made a part hereof.
8. Pursuant to Section 23.03(A) of the Lease, Defendant is also responsible for the
payment of legal fees and costs to bring suit for the collection of rent.
2
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the
amount of $18,183.08 plus ongoing rent and additional rent as it accrues, late fees, legal fees,
interest and costs.
COUNT II - EJECTMENT
9. Plaintiff incorporates by reference the allegations contained in Paragraphs 1
through 8 above, as though fully set forth herein at length.
10. Due to the default of Defendant as set forth above, Plaintiff is seeking possession
of the premises.
WHEREFORE, Plaintiff demands judgment in ejectment as authorized by the Lease for
possession of approximately 4,400 square feet of commercial space located at the Stonehedge
Shopping Center, 950 Walnut Bottom Road, Carlisle, PA 17013 as set forth in Count H of
Plaintiff's Complaint.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the
amount of $18,183.08 plus additional late fees, legal fees, interest, costs and possession of the
premises, as set forth in Counts I and II of Plaintiff's Complaint.
SIRLIN LESSER & BENSON, P.C.
BY.
PETER A. LESSER, ESQUIRE
Attorney for Plaintiff
3
VERIFICATION
LEO S. ULLMAN, being duly sworn according to law, deposes and says that he is
the representative of Plaintiff, PR STONHEDGE SQUARE LP, in this action, and hereby verifies
that the statements set forth in the foregoing Civil Action - Complaint are true and correct to the
best of his knowledge, information, and belief. I understand that the statements in the foregoing
Complaint - Civil Action are made subject to the penalties of 18 Pa. CSA Section 4904 relating to
unsworn falsification to authorities.
-- N I
LEO S.ULLMAN
DATED:
EXHIBIT "A"
STONEHEDGE SQUARE
SHOPPING CENTER
LEASE TO: BI CHEN
DATE:
r
r.
TABLE OF CONTENTS
SECTION PAGE
Section 1.01. Construction Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Construction Allowance . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.03. Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.01. Commencement Date and Length of Term . . . . . . . . . . . . . . . . . . 1
Section 2.02. Renewal Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.03. Entry Prior to Substantial Completion and Prior to Term . . . . . . . . . 2
Section 3.01. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 3.02. Mortgage Subordination and Seniority . . . . . . . . . . . . . . . . . . . 2
Section 3.03. Acceptance of the Premises, Commencement Date, Attornment, and Estoppel
Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 4.01. Minimum Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 4.02. Percentage Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 4.03. Additional Rent . . . . . . . . . . . . . . . . . . . 4
Section 4.04. Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 4.05. Net Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 5.01. Security Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 6.01. Permitted Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6.02. Continuous Occupancy . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6.03. Permitted Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7.01. Common Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 7.02. Maintenance of Common Areas . . . . . . . . . . . . . . . . . . . . . . . 6
Section 7.03. Maintenance Contribution . . . . . . . . . . . .
Section 8.01. Restrictions on Assignment .. . . . . . . . . . . . . . . . . . . . . . . . 7
Section 8.02. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 9.01. Repairs by Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 9.02. Repairs by Tenant . . . . . . . . . . . . . . . . . . . . ... . . . . . 8
Section 9.03. Quality of work and Warranties . . . . . . . . . . . . . . . . . . . g
Section 10.01. Payment for Utilities . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 10.02. Change in Supply of Utilities . . . . . . . . . . . . . . . . . . . . . . . 8
Section 10.03 Landlord Not Responsible for Interruption in Service. . . . . . . . . . . . 9
Section 11.01. Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 11.02. Garbage Collection Service . . . . . . . . . . . . . . . . . . . . . . . 9
Section 11.03. Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 11.04. Signs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 11.05. Compliance with Laws and Insurance Requirements . . . . . . . . . . . . 10
Section 12.01. Mechanic's and Materialmen's Liens . . . . . . . . . . . . . . . . . . . 10
Section 12.02. Other Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 13.01. Use of Roof and Walls by Landlord . . . . . . . . . . . . . . . . . . . . 10
Section 13.02. Pipes and Conduits . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 14.01. Radius Restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 15.01. Damage to Landlord's Property . . . . . . . . . . . . . . . . . . . . . 11
Section 15.02. Indemnity of Landlord . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 16.01. Real Estate Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.
Section 16.02. Licenses and Permits . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 16.03. Taxes on Rentals and Other Sums Payable by Tenant . . . _ . _ . . . . . . 12
Section 16.04. Personal Property Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 17.01. Trade Fixtures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 17.02. Negligence of Landlord and Acts of Other Tenants . . . . . . . . . . . . 13
Section 18.01. Landlord's Entry. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 19.01. Fire and other Casualty . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 20.01. Effect of Total or Partial Condemnation . . . . . . . . . . . . . . . . . 15
Section 20.02. Partial Condemnation Procedure . . . . . . . . . . . . . . . . . . . . . 15
Section 20.03. Other Condemnation in the Center . . . . . . . . . . . . . . . . . . . . 16
Section 20.04. Condemnation Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 20.05. Condemnation After Discontinuance of Business . . . . . . . . . . . . . . 16
Section 20.06. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 21.01. Advertising Contribution . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 22.01. Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 22.02. Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 23.01. Abatement of Tenant's Defaults . . . . . . . . . . . . . . . . . . . 17
Section 23.02. Distraint and Default Rent . . . . . . . . . . . . . . . . . . . . . . . 17
Section 23.03. Termination and /or Reletting for Default; Liquidated Damages . . . . . . 17
Section 24.01. Remedies Cumulative _ . . . . . . . . . . . . . . 18
Section 24.02. Governing Law and Jurisdiction . . . . . . . . . . . . . . . . . . . 19
Section 24.03. No Trial by Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 25.01. Recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 25.02. waiver of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 25.03. Waiver of Claim of Merger . . . . . . . . . . . . . . . . . . 19
Section 26.01. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 27.01. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 27.02. Tenant's Corporate Authority . . . . . . . . . . . . . . . . 20
Section 27.03. Entire Agreement . . . . . . . . . . 20
Section 27.04. Captions; Deletions; Definitions . . . . . . . . . . . . . . . . . . 20
Section 27.05. Site Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 27.06. obligations Surviving Terminations . . . . . . . . . . . . . . . . . . 21
Section 27.07. Genders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 27.08. Modifications for Financing Reasons . . . . . . . . . . . . . . . . . 21
Section 27.09. Partial invalidity . . . . . . . . . . . . . . . . . . . . . . .. . . . 21
Section 27.10. Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 27.11. No Partnership . . . . . . . . . . . . . . . . . . . . . . . 21
Section 27.12. Surrender of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 27.13. No Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 27.14. Relocation . . . . . . . . . . . . . . 22
Section 27.15. Tenants Existing Lease Agreement . . . . . . . . . . . . . . . . . . . . 22
EXHIBIT 1 SITE PLAN
EXHIBIT 2 INTENTIONALLY OMITTED
EXHIBIT 3 COMMON AREA COSTS
EXHIBIT 4 RULES AND REGULATIONS
EXHIBIT 5 TENANT'S CERTIFICATE
EXHIBIT 6 RENOVATION REQUIREMENTS FOR EXISTING PREMISES
/ 1 •
SHOPPING CENTER LEASE
THIS LEASE AGREEMENT, made on this day of �F L 2001, by and between
STONEHEDGE CENTER, LLC, having an office at 170 W. Ridgely Road, Suite 300, Lutherville,
MD 21093 (hereinafter called "Landlord "), and BI CHEN (hereinafter called "Tenant ").
WITNESSETH: That in consideration of the rents, covenants, and agreements herein
contained, Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord, the
store premises (hereinafter called the "premises ", "leased premises" or "demised Q ,h
premises ") in the Stonehedge Square Shopping Center (the "Center ") in Carlisle, PixQ sr M'vI
Pennsylvania containing approximately 4,400 square feet, as.shown on the site plan of 3Tt'.I8
the Center (hereinafter called the "site plan ") annexed hereto as Exhibit 1 . As used
herein, the term "Center" refers to the land outlined on the site plan, and the
improvements now or hereafter erected thereon. This Lease is made upon the following
terms, covenants and conditions:
ARTICLE I
CONSTRUCTION OF THE PREMISES
Section 1.01. Construction Work.
Tenant hereby accepts the premises in "as -is" condition. Tenant shall, at its
expense, perform all work which is necessary to prepare the premises for the conduct of
business by Tenant in the manner contemplated by this Lease, including, but not limited
to, the work to be done by Tenant under Section B of Exhibit 2 ( "Tenant Improvements ").
All work performed by Tenant shall be subject to all requirements and conditions set
forth in Sections B and C of Exhibit 2 .
Landlord and Tenant hereby agree that in the event the premises are not completed
and possession delivered to Tenant on or before three (3) months from the date of this
Lease, then this -Lease shall be deemed null and void, have no further force or effect,
and any security deposit made herewith shall be promptly returned to the Tenant, and the
parties shall have no further obligation to each other.
Within ten (10) days after Tenant opens for business, Tenant shall execute and
deliver to Landlord a certificate substantially in the form attached hereto, marked
Exhibit 5 and made a part hereof, indicating thereon any exceptions thereto which may
exist at that time. Failure of the Tenant to execute and deliver such certificate shall
constitute an acceptance of the premises and acknowledgment by Tenant that the
statements included in Exhibit 5 are true and correct, without exception.
All improvements incorporated by Tenant'in the premises (other than trade
fixtures), including but not limited to floor covering, air - conditioning equipment and
duct work, shall be considered permanent improvements to the premises and shall be the
property of the Landlord.
Section 1.02. Construction Allowance. �3S0
(p � Within thirty (30) days following the date that Tenant opens for business in the
remises, Landlord shall pay Tenant, as a contribution towards the Tenant Improvements,
a construction allowance in an amount up to $11,750.00 (the "Construction Allowance ") of
Tenant's documented costs for the Tenant Improvements, provided that Tenant submits
copies of paid invoices to Landlord for an amount equal to the Construction Allowance.
Landlord shall have the option of providing the Construction Allowance in the form of an
offset against minimum rent first falling due during the term of this Lease. Landlord
shall notify Tenant of its election regarding payment of the Construction Allowance
within ten (10) days following the date that Tenant has substantially completed the
Tenant Improvements.
Section 1.03. Financing.
INTENTIONALLY OMITTED.
ARTICLE II
TERM
Section 2.01. Commencement Date and Length of Term.
The term of this Lease shall commence on the date that Landlord d elive rs the
premises to Tenant and shall terminate ten (10) years after the first (1s0 day of the
first full calendar month following the "Rent Commencement Date ", as defined in Section
1
4.01.
Section 2.02. Renewal Option.
Tenant shall have the option to renew the term of this Lease for one additional
term of ten (10) years following the expiration of the original term, provided that this
Lease is in full force and effect and free of defaults by Tenant on the day that the
renewal option is exercised and on the day that the renewal term begins. The renewal
term shall be on the same terms, covenants and conditions as the original term except
(i) the length of the renewal term shall be as specified in this Section 2.02.; (ii)
Tenant shall have no further rights of renewal after the renewal term provided for
herein and (iii) the minimum rent shall be as set forth below, wherever the word "term"
appears in this Lease it shall be deemed to mean the original term as extended by the
renewal term. Tenant's right of renewal provided for herein must be exercised by
delivery to Landlord from Tenant of an unequivocal written notice of Tenant's election
to renew at least 270 days prior to the expiration of the original term and upon the
timely delivery of such written notice, and without any further instrument, this Lease
shall be deemed to be renewed, subject to the conditions of this Section 2.02.
Lease Years Annual Payment Monthly Payment
11 -12 $66,036.24 $5,503.02
13 -14 $68,017.32
$5,668.11
15 -16
17 -18 $70 $5,838.16
19 -20 $72,159.60 $6,013.30
$74,324.40 $6,193.70
Section 2.03. Entry Prior to Substantial Completion and Prior to Term.
INTENTIONALLY OMITTED.
ARTICLE III
QUIET ENJOYMENT, SUBORDINATION, ATTORN14ENT AND ESTOPPEL CERTIFICATE
Section 3.01. Quiet Enjoyment.
So long as Tenant complies with the terms, covenants and conditions of this Lease
on Tenant's part, Tenant shall have the peaceful and quiet use of the premises, subject
to the terms, covenants and conditions of this Lease, without interference by Landlord
or anyone claiming rights in the premises by, through or under Landlord. In the event
of any breach by the Landlord of this covenant, provided the same would in law and /or
equity entitle Tenant to cancel this Lease, Tenant may, by written notice given to
Landlord within thirty (30) days after any such breach shall have occurred, cancel this
Lease, and upon any such cancellation all rights of either party against the other shall
cease and the term of this Lease shall expire as if the date of such cancellation were
the date originally fixed herein for the expiration of the term. Such right of
cancellation shall be Tenant's sole remedy for any breach by Landlord of the covenant
herein set forth; Tenant hereby waiving all other remedies for any such breach.
Section 3.02. Mortgage Subordination and Seniority.
The holder of any mortgage or deed of trust now existing or hereafter placed upon
the Center shall have the right to elect, at any time, whether this Lease shall be
subordinate to the operation and effect of such mortgage or deed of trust or superior
thereto, without the necessity in either case for execution by Tenant of any instrument
other than this Lease, and such election shall be binding upon Tenant. If, however, the
holder of the mortgage or deed of trust desires to confirm the effect of this provision,
then Tenant shall execute an attornment or subordination agreement in form satisfactory
to such holder upon request. Tenant hereby irrevocably appoints Landlord as attorney -
in -fact for Tenant with full power and authority to execute and deliver in the name of
Tenant any such subordination or attornment agreement; and acknowledges that the
foregoing power of attorney to Landlord is a power coupled with an interest, and
irrevocable. This Section 3.02 shall be inoperative as to the holder of any mortgage or
deed of trust with whom Tenant enters into an attornment agreement pursuant to Section
3.03(a)(iii).
Section 3.03. Acceptance of the Premises, Commencement Date, Attornment, and Estoppel
Certificates.
(a) when the term commences (or earlier as to item (iii) below if requested by
Landlord's construction or permanent mortgagee), Tenant shall promptly; W enter into a
written and acknowledged agreement with Landlord stipulating the commencement date of
the Lease term; (ii) acknowledge in writing (and in form satisfactory to the holder of
the permanent mortgage on the premises) that Tenant has accepted the premises, except
that such acceptance may provide that it is not to constitute a waiver of Landlord's
2 a
r
obligation to complete punch list items; and (iii) enter into a written agreement with
Landlord's permanent (and /or construction) mortgagee in form satisfactory to such
mortgagee, under which Tenant will agree to attorn to such mortgagee or to a purchaser
at foreclosure sale in the event of a mortgage foreclosure, provided that such mortgagee
also agrees to recognize Tenant's rights under this Lease, notwithstanding a mortgage
foreclosure, so long as Tenant performs and observes its obligations under this Lease,
and if required by such mortgagee, will agree to attorn to such mortgagee under all of
the terms of this Lease in the event such mortgagee becomes party to a ground lease
covering the Center or any part thereof which includes the premises, provided that such
mortgagee agrees to recognize this Lease.
(b) when requested by Landlord, Tenant shall promptly execute an agreement in
the form required by Landlord: (i) with the holders of the reversionary interest under
any ground lease and ground sub -lease to which Landlord's estate in the Center is
subject, for the purpose of agreeing to attorn to such holders in the event of
termination of either of said leases, provided that such holders execute such agreement
for the purpose of recognizing this Lease if construction of the premises is completed;
and (ii) with any purchaser or prospective purchaser of Landlord's interest in the
premises, for the purpose of attorning to such purchaser as its landlord, provided, that
such purchaser executes such agreement for the purpose of recognizing this Lease.
(c) within three (3) days after a written request from time to time made by
Landlord, Tenant shall deliver to Landlord a signed and acknowledged statement in
writing setting forth: (i) that this Lease is unmodified, in full force and effect, free
of existing defaults of Landlord and free of defenses against enforceability (or if
there have been modifications or defaults, or if Tenant claims defenses against the
enforceability hereof, then stating the modifications, defaults and /or defenses), (ii)
the dates to which rent and additional rent have been paid, and the amount of any
advance rentals paid, (iii) the commencement and expiration dates of the original term,
(iv) whether Tenant has given written notice exercising its rights, if any, to renew
this Lease, and if so, the renewal terms so opted, (v) that Tenant has no outstanding
claims against Landlord (or if there are any claims, then stating the nature and amount
of such claims), and (vi) the status of any other obligation of either party under or
with respect to this Lease, it being intended that any such statement may be relied upon
by any purchaser or mortgagee of Landlord's interest in the premises, or any prospective
purchaser or mortgagee.
(d) Time is of the essence of all Tenant's obligations under this Section 3.03
and Tenant acknowledges that any delay or refusal on its part in signing and delivering
any instruments mentioned in this Section 3.03 may subject Landlord to substantial costs
and damages.
ARTICLE IV
RENT
Section 4.01. Minimum Rent.
Commencing on the date that is two hundred and seventy ( 270) days following the
date that the premises are delivered to Tenant (the "Rent Commencement Date "), Tenant
shall pay Landlord a minimum rent as follows:
Lease Years Annual Payment Monthly Payment
1-2 $58,212.00 $4,851.00
3 -4 $59,305.92 $4,942.16
5 -6 $60,432.60 $5,036.05
7-8 $62,245.56 $5,187.13
9 -10 $64,112.88
$5,342.74
If the Rent Commencement Date falls on a day other than the first day of a calendar
month, the minimum rent for the period from the Rent Commencement Date to the first
(lst) day of the first full calendar month following the Rent Commencement Date shall be
prorated by dividing the monthly rate by a fraction the numerator of which is the number
of days remaining in such month and the denominator of which is the total number of days
in such month) and shall be payable on the fifth (5th) day after the Rent Commencement
Date.
Lease Year,
The first lease year of this Lease shall commence on the Lease commencement date and
shall.end at the close of the twelfth full calendar month following the Rent
Commencement Date; thereafter, each lease year shall consist of periods of twelve
calendar months.
Section 4.02. Percentage Rent.
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✓ iINTENTIONALLY OMITTED.
Sect ion 4.03. Additional Rent.
Whenever under the terms of this Lease any sum of money is required to be paid by
Tenant in addition to the minimum rental herein reserved, whether or not such sum is
herein designated 'as "additional rent" or provision is made for the collection of said
sum as additional rent, said sum shall, nevertheless, be deemed to be additional rent,
and shall be collectible as rent. All minimum rent required to be paid hereunder, and
all other payments fixed herein as to amount and time of payment shall be paid without
prior demand; and all minimum rent and additional rent shall be paid without any setoff,
abatement, or deduction except as expressly set forth in this Lease. Any payment by
Tenant of a lesser amount of minimum or additional rental than is then due shall be
applied to such category of arrearage as Landlord may designate irrespective of any
contrary designation by Tenant and to the oldest, most recent or other portion of the
sum due as Landlord may determine; and Landlord's acceptance of any such partial payment
shall not be deemed an accord and satisfaction, and shall be without prejudice to
Landlord's right to pursue any other remedies. If Landlord receives any checks from
Tenant that are returned for any reason whatsoever, then Landlord shall have the right
to require Tenant to make payments of rent or additional.rent by certified checks or
money orders only. in addition, Tenant shall pay a returned check fee in the amount of
One Hundred Dollars ($100.00) for each check so returned which shall be deemed
additional rent.
Section 4.04. Payment.
All rent payable and all statements deliverable by Tenant to Landlord under this
Lease shall be paid and delivered to Landlord at at P.O. Box 5678, Lutherville, MD
21094 -5678, or by overnight delivery to 170 W. Ridgely Road, Suite 300, Lutherville, MD
21093 or at such other address as Landlord may hereafter designate in writing to Tenant.
Section 4.05. Net Lease.
It is mutually intended and understood that the minimum rent is a "net" rent to
Landlord, and that all taxes (except Landlord's personal income taxes), maintenance
costs and other charges, assessments and expenses attributable to the premises shall be
paid by Tenant in addition to said rent, as hereinafter provided.
ARTICLE V
SECURITY DEPOSIT
Section 5.01. Security Deposit.
Landlord hereby acknowledges receipt from Tenant of the sum of Four Thousand Eight
Hundred Fifty One Dollars ($4,851.00) to be held by Landlord as security for the payment
of rent and the performance of Tenant's other obligations under this Lease. The deposit
shall be returned to Tenant witho interest at the termination of this Lease if all of
Tenant's obligations hereunder are performed to the date of termination. If Tenant
defaults in the payment of rent or in the performance or observance of any other
obligation on its part under this Lease, Landlord may apply the deposit to payment of
the rent in default or other money arrearage and /or to the damages and costs incurred by
Landlord as a result of any default, and /or to costs incurred by Landlord in rectifying
any default, and /or to the prepayment of minimum rent for any subsequent period of the
term and /or to any amount to which Landlord may be entitled under Article XXIII of this
Lease; and Tenant shall promptly thereafter restore the security deposit to the original
amount above specified (except to the extent said sum is applied by Landlord to
prepayment of minimum rent). The right of Landlord to apply the security deposit as
above specified shall not be construed as a limitation upon Landlord's right to invoke
any other remedy available under this Lease or at law or equity for breach of this Lease
or to collect the full amount of damages owing by Tenant on account of such breach. if,
by reason of Tenant's default under this Lease, Landlord terminates this Lease either
before or after the commencement of the term or reenters the premises, Landlord may
retain the security deposit as liquidated damages (applying it against the damages which
it suffers but without waiving its rights to recovery of additional damages to which it
may be entitled) or apply it to the monthly installments of minimum rent hereunder in
inverse order of accrual.
ARTICLE VI
PERMITTED USE AND CONTINUED OCCUPANCY
Section 6.01. Permitted Use.
(a) Permitted Use. The premises shall be used and occupied during the term
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hereof for the following purposes, and none other: The operation of a C hinese buffet
style restaurant serving principally Chinese and incidentally American cuisine and non-
alcoholic beverages primarily for on premises consumption.
(b) Special Restrictions. Without any intention to diminish the efficacy of
Section 6.01(a), but in order to specify particular uses and practices which, if engaged
in by Tenant, would be in violation of other leases in, or recorded agreements
pertaining to, the Center or of exclusive use privileges which Landlord has, will, or
may desire to grant, or which constitute business or practices which Landlord may desire
to prohibit or control, Tenant shall not, at any time during the term: (1) maintain or
permit any vending or amusement game machines on the premises; or (2) sell any
additional merchandise or conduct any business or perform any additional service on the
premises which would violate or be in conflict with any restrictive use covenant or
exclusive use privilege at any time binding upon Landlord, but this item (2) shall not
be deemed to preclude the use allowed under Section 6.01(a) hereof. Tenant shall bear
all risks of any violation of any provision of this Section 6.01(b) and shall defend,
indemnify and save Landlord harmless from all damages and expenses (including counsel
fees) resulting from any such violation.
Section 6.02. Continuous Occupancy.
(a) At the commencement of the term of this Lease, Tenant shall occupy the
premises and promptly open for business, at which time the premises shall be fully
fixtured, fully stocked and fully staffed. Tenant acknowledges that it has been .
informed that its obligation to open for business promptly at the commencement of the
term has been and will be relied upon by Landlord in dealing with other tenants in the
Center, and the failure of Tenant to open for business as above specified may cause
substantial damages to Landlord. Tenant shall defend, indemnify and save Landlord
harmless from any damages which may be claimed against Landlord and shall indemnify
Landlord for any losses suffered because of Tenant's failure to comply with its
obligations under the first sentence of this Section 6.02(a).
(b) Throughout the term, Tenant shall continuously conduct in the premises, with
a full stock of merchandise and full staff of personnel, the business permitted under
Section 6.01(a) on all business days and during such hours as are kept by any department
store in the Center or by a majority of the tenants in the Center (excluding the Tenant
hereunder), but, in any event, Tenant shall be open for business from 10:00 a.m. to 9:00
p.m., Monday through Sunday. Tenant acknowledges that its obligation to continuously
and actively conduct business in the premises in the manner prescribed in this Section
6.02(b) is for the purpose of enhancing the business activity and public patronage of
all stores in the Center in order to produce for Landlord the maximum possible
percentage rents from all applicable stores in the Center and to enhance the leasability
Of floor space in the Center; and Tenant acknowledges that failure on its part to comply
with the provisions of this Section 6.02(b) would cause Landlord substantial damages
which might be difficult or insusceptible of exact proof. Accordingly, the parties have
agreed that if Tenant fails to comply with the provisions of this Section 6.02(b), then
Landlord shall not be required to prove its actual damages for breach of this Section
6.02(b) but, in lieu thereof, Tenant shall pay Landlord, as liquidated damages, an
additional monthly rent equal to the monthly minimum rent payable under Section 4.01
hereof, which liquidated damage payments shall continue from the date of breach until
such breach is cured or until the end of the then current term of this Lease, whichever
is first. The liquidated damages shall be paid monthly, concurrently with the monthly
payments of minimum rent reserved under the Lease. Nothing in this Section 6.02(b)
shall be construed as a limitation upon Landlord's right to obtain specific performance
of Tenant's obligations to continuously conduct business in the manner herein specified
or to recover any other provable monetary damages. A breach by Tenant of its
obligations under subsection (a) of this Section 6.02 shall also constitute a breach of
this subsection (b) and entitle Landlord not only to its claims under subsection (a) but
also to liquidated damages under this subsection (b) for so long as the breach of this
subsection continues.
Section 6.03. Permitted Name.
Tenant shall conduct business on the premises in the name of Great Wall and under
no other name or trade name unless and until the use of some other name is approved in
writing by Landlord.
ARTICLE VII
COMMON AREAS
Section 7.01. Common Areas.
(a) Tenant's Right to Use Common Areas. During the term of this Lease,
customers of Tenant shall be entitled to the non- exclusive use, free of charge, but in
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common with others, of (1) the automobile parking areas (herein called "parking areas ")
from time to time made available by Landlord for the common parking of all Center
tenants and their patrons; (2) the entrances and exits thereto and the driveways
thereon, for vehicular and pedestrian ingress and egress only (which parking areas,
entrances, exits and driveways are sometimes herein collectively called "vehicle
areas "); and (3) the pedestrian walkways in the Center, for pedestrian ingress and
egress only. All of the facilities described in (1), (2) and (3) are herein sometimes
collectively called "common areas." Tenant and its contractors, agents (other than
premises employees), licensees, invitees and suppliers may use any of the vehicle areas
for ingress and egress, and may use the parking areas for parking of non - commercial
vehicles and may load and unload commercial vehicles in the parking area at the service
door to the premises and shall thereafter promptly remove such vehicles;_and may use any
delivery driveway designated by the Landlord for access to the premises for deliveries,
pickups and other services to the premises, but no other driveways. All such uses shall
be subject to such rules and regulations as may be prescribed from time to time by
Landlord; and Landlord shall have exclusive management and control over the common
areas.
(b) Employee Parking. Tenant and its premises employees shall have the right,
in common with others, to park vehicles in the areas that Landlord designates as
employee parking areas and in no other areas, and may use the other vehicle areas for
ingress and egress only. Tenant shall promptly furnish to Landlord, on request, license
numbers of vehicles used by Tenant and its employees. If any employees of Tenant parks
a vehicle in an area other than that designated for parking of employees, Tenant shall
pay Landlord Twenty Dollars ($20.00) per day or partial day for each vehicle so parked
and Landlord shall have the right to remove such vehicle to the designated employee
parking area at Tenant's expense, if Landlord shall have given the manager of the
premises oral or written notice of such employee's current or past parking violations at
least two (2) days prior to removal. Tenant shall defend, indemnify and save Landlord
harmless from any claims for damages which may be made against Landlord by any employee
of Tenant on account of or arising out of removal of a vehicle belonging to an employee
of Tenant.
(c) Control of Parking Areas. In order to preserve the parking areas for the
use of patrons of the Center, Landlord may exact parking charges (by meters or
otherwise) provided that provision is made for free parking ticket validation for
Tenant's customers, may close temporarily all or any portion of the common areas as may
be required for proper maintenance and /or repair or to avoid dedication to public use,
and take such other action as it deems advisable in its business judgment in order to
secure or improve the convenience and use thereof by the tenants of the Center and their
customers. Landlord may from time to time change the location, layout and arrangement
of the parking areas, driveways and walkways and erect buildings, or other temporary or
permanent structures or improvements thereon, provided that Landlord maintains
sufficient automobile parking facilities for the Center to comply with legal
requirements, and does not deprive Tenant of access to the premises.
(d) Picketing. If, at any time after the execution of this Lease, the premises
or the Center shall be picketed by any person or organization alleging a grievance
against, or dispute with, Tenant, then Landlord may, at its option require Tenant
forthwith to close its business on the premises pending the resolution of any such
grievance or dispute, but Tenant shall use its best efforts in good faith to cause the
cessation of all such picketing. Tenant shall not, without Landlord's prior written
consent, reopen the premises for business until Tenant furnishes to Landlord
satisfactory proof that there will be no further picketing of the premises or the Center
should Tenant reopen for business in the premises. The closing of Tenant's business on
the premises pursuant to this subsection (d) shall not be deemed a constructive eviction
of Tenant.
(e) No Public Use. Nothing herein contained shall be deemed to be a dedication
of the common areas to public use, it being Landlord's intention that the common areas
may be used only by Tenant and the other permitted users mentioned in this Section 7.01,
and then only for the particular facilities and limited purposes specified as to each
user.
Section 7.02. Maintenance of Common Areas.
Landlord shall, subject to Section 7.03, provide illumination of the common areas
for the tenants of the Center during such after -dark hours as tenants occupying more
than fifty percent (50 %) of the rented retail floor space in the Center are open for
business, and shall keep the common areas in reasonable repair; and Landlord shall
substantially clear ice and snow from the vehicle areas to permit substantial use
thereof for the intended purpose, with reasonable diligence under the circumstances.
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Section 7.03. Maintenance Contribution.
Commencing on the earlier to occur of (i) 120 days following the date the premises-'
are delivered to Tenant or (ii) the date that Tenant opens for business in the premises - A-4)
(the "Extras Commencement Date "), as a contribution to the Landlord's costs of operating
and maintaining the common areas and the facilities thereon located or appurtenant
thereto, Tenant shall pay Landlord a pro rata share of all costs and expenses of
maintaining and operating the common areas of the Center (including all areas,
structures and facilities within the Center not made available for leasing and all
areas, structures and facilities adjacent to the Center used in connection with the
Center or for which Landlord has responsibility for maintenance or maintenance cost
under governing law) proportionately as the square footage of the premises bears to the
square footage of all l easable floor space in the Center (exclusive of floor space
leased to tenants who maintain portions of the Center vehicle areas and exclusive of
floor area leased by a tenant Landlord considers to be a "major ", "anchor" or , national
tenant" who is no required to fully share in payment of common area expenses ( "Anchor
Tenant "). To the extent any Anchor Tenant or outparcel building does contribute toward
common area expenses, that contribution shall be applied to reduce the total amount of
common area expenses passed through to Tenant. Operating and maintenance costs shall
include, but not be limited to, all of the costs set forth on Exhibit 3- hereto, and
shall be determined by Landlord and billed no less often than annually for such fiscal
year as Landlord may adopt for such purpose, except that Landlord may temporarily adopt
a longer or shorter accounting period for a specified period following the opening of
the Center. Payments shall be made in monthly installments starting at the Extras
Commencement Date, based on es costs projected by Landlord from time to time,
except that until Tenant is otherwise advised, Tenant's initial monthly installments
shall be at the annual rate of One Dollar and Twenty Three Cents ($1.23) per square foot
of floor space in the premises. The monthly installments paid by Tenant shall be
adjusted within thirty (30) days after Landlord determines its actual costs for any
fiscal period, to reflect Tenant's actual share of such costs, at which time Tenant
shall pay any balance owing on its annual contribution, or shall be credited any excess,
as the case may be; except that the monthly payments made at the above specified rate
shall also be adjusted (prospectively and retroactively) to conform to any cost
projection adopted by Landlord before the-initial accounting period ends.
ARTICLE VIII
ASSIGNMENT AND SUBLETTING
Section 8.01. Restrictions on Assignment.
Tenant shall not assign this Lease or sublease all or any part of the premises,
nor permit other persons to occupy or conduct business in the premises or any part
thereof, nor grant any license, concession, management contract or franchise for all or
any part of the premises. Any assignment by operation of law, attachment or assignment
for the benefit of creditors shall, at Landlord's option, be inoperative. If Tenant is
a corporation, any transfer of any of Tenant's issued and outstanding capital stock or
any issuance of additional capital stock, as a result of which the majority of the
issued and outstanding capital stock of Tenant is held by a corporation, firm, or person
or persons who do not hold a majority of the issued and outstanding capital stock of
Tenant on the date hereof, shall be deemed a prohibited assignment under this Section
8.01. If Tenant is a partnership, any transfer of any interest in the partnership or
any other change in the composition of the partnership which results in a. change in the
management of Tenant from the person or persons managing the partnership on the date
hereof, shall be deemed a prohibited assignment under this Section 8.01. If Landlord
consents to any transfer of this Lease, Tenant shall pay to Landlord a transfer fee of
Five Hundred Dollars ($500.00) prior to the effective date of the transfer in order to
reimburse Landlord for all of its internal costs and expenses incurred with respect to
the transfer. ,
Notwithstanding anything to the contrary contained in this Section 8.01, Tenant
shall have the right to assign this Lease for any of the then remaining portion of the
unexpired Term, with Landlord's consent, which consent shall not be unreasonably
withheld or delayed, to a corporate entity or individual who has a good business
reputation, provided (i) the net worth (determined in accordance with generally accepted
accounting principles) of the assignee shall not be less than the net worth of Tenant at
the time of execution of this Lease and at the time of such assignment; (ii) such
assignee shall continue to operate the business conducted in the premises in the same
manner as Tenant and pursuant to all of the provisions of this Lease; (iii) such
assignee shall assume in writing all of Tenant's obligations hereunder and Tenant shall
provide Landlord with a copy of such assignment; and (iv) the Tenant to which the
premises were initially leased shall continue to remain liable for the performance of
all terms including, but not limited to, payment of Rent and other sums due under this
Lease.
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Section 8.02. No Waiver.
If Landlord at any time consents in writing to any assignment or sublease as
defined in and prohibited by Section 8.01, in addition to any other consideration that
may pass between the parties in connection therewith, Tenant and any such assignee or
sublessee shall be deemed to have covenanted not to make any further assignment or
sublease contrary to the provisions of Section 8.01, and such covenant shall be deemed
to have been made as of the date of such consent and shall take effect prospectively
from the date thereof.
ARTICLE IX
REPAIRS
Section 9.01. Repairs by Landlord.
Subject to delays which are caused by labor disputes, inability to obtain
materials or labor on reasonable terms, delays excusable under the AIA General
Conditions from time to time in force, or any cause whatsoever not due to the fault of
Landlord (including Tenant's failure to furnish information as hereinafter provided),
Landlord shall make all necessary repairs to the roof and necessary structural repairs
to the exterior walls of the premises, provided that Tenant gives Landlord written
notice of the necessity of such repairs and that the need for such repairs is not due to
any act or omission of Tenant, its agents, servants or contractors. Tenant shall pay to
Landlord, as additional rent, all costs and expenses incurred by Landlord in performing
the foregoing repairs caused by Tenant within ten (10) days after receipt of a bill
therefor from Landlord.
Section 9.02. Repairs by Tenant.
Saving and excepting the repairs for which Landlord is responsible under Sections
9.01 and 19.01, Tenant shall keep the premises, and all systems, equipment and
facilities in the premises in good condition and repair, and shall make all replacements
required to maintain said status of repair. Tenant shall also keep in good condition
the common areas within forty (40) feet of the wall in which the service door for the
premises is located, and Tenant shall keep said area clean.
Section 9.03. Quality of Work and warranties.
All repairs and replacements made by the parties shall be equal in quality to the
original construction. Landlord shall assign to Tenant the benefits of all assignable
warranties received from contractors in connection with the original construction of the
premises.
ARTICLE X
UTILITIES
Section 10.01. Payment for Utilities.
Commencing on the date that the premises are delivered to Tenant, Tenant shall
pay, when due or when billed by Landlord, all utility charges (as defined below) and all
charges for water and sewer service furnished to the premises based on the usage shown
by a utility company meter for the premises or by a submeter for the premises installed
by Landlord, and a proportionate share of water meter and fire service charges for the
Center. Tenant shall promptly have all utility services billed to it in its name. If
neither meter is furnished, Tenant shall pay Landlord a proportionate share of the
Center's water and sewer bills, based on the ratio of the premises floor area to all
leased floor area in the Center. Utility charges includes, but is not limited to, all
consumption charges for all utility services furnished to the premises, including, but
without limitation, heat, air conditioning, gas (if available), electricity, and
telephone.
Section 10.02. Change in Supply of Utilities.
If permitted by law, Landlord shall have the right at any time and from time to
time during the Lease term to either contract for service from a different company or
companies providing electricity service (each such company shall hereinafter be referred
to as an "Alternate Service Provider ") Or continue to contract for service from the
current electric service provider (the "Electric Service Provider "),
Tenant shall cooperate with Landlord, the Electric Service Provider, and any
Alternate Service Provider at all times and, as reasonably necessary, shall allow
Landlord, Electric Service Provider, and any Alternate Service Provider reasonable
access to the Center's electric lines, feeders, risers, wiring, and any other machinery
within the premises.
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Section 10.03 Landlord Not Responsible for Interruption in Service.
Landlord shall not be liable to Tenant for damages because of any interruptions,
disruption, or defect in the supply or character of the utility services, and Tenant
shall not be entitled to claim a constructive eviction due to such interruption, defect
or character; but Landlord shall proceed with reasonable diligence to restore such
service to the extent that it is within Landlord's control to do so.
ARTICLE XI
TENANT'S OPERATIONS, ALTERATIONS, SIGNS AND LAW COMPLIANCE
Section 11.01. Rules and Regulations.
Tenant shall at all times comply with the rules and regulations set forth on
Exhibit 4 hereto, and with any additions thereto and modifications thereof adopted from
time to time by Landlord, and each such rule or regulation shall be deemed as a covenant
of this Lease to be performed and observed by Tenant.
Section 11.02. Garbage Collection Service.
Landlord may, from time to time, elect to provide garbage and trash collection
service for the premises. If Landlord so elects, Tenant shall cooperate with Landlord
in the scheduling of such collection service and Tenant shall not use any other garbage
or trash collection service at the premises. The cost of any such service shall be
included in the Landlord's common area costs or shall be billed monthly to Tenant, based
on the ratio of the floor area of the premises to the aggregate floor area of all
tenants to whom Landlord furnishes such service. Landlord may at any time terminate
such collection service upon the giving of ten (10) days' advance notice to Tenant.
Section 11.03. Alterations.
Tenant shall not make any alterations, additions or improvements to the store
front of the premises or any alterations, additions or improvements affecting structural
or support elements of or in the building of which the premises are a part, or affecting
any utility system servicing the premises or other parts of the Center. Any
alterations, additions or improvements by Tenant which are permitted hereunder or
hereafter approved by Landlord shall immediately become the property of Landlord and
remain upon the premises at the end of the term unless Landlord notifies Tenant to
restore the premises to its original condition, in which event Tenant shall comply with
such requirement prior to the expiration of the term. Tenant shall not provide a patron
entrance to the premises in addition to the entrance existing at the beginning of the
term. Tenant shall not cut or drill into, or secure any fixtures, apparatus or
equipment of any kind to, any part of the premises without Landlord's prior written
consent; and if Tenant shall in any way cut through or pierce the roof or exterior walls
of the premises, the Landlord's repair obligations respecting the roof or exterior walls
(as the case may be) under Section 9.01 hereof shall terminate. Before undertaking any
alterations permitted hereunder or consented to by Landlord hereunder, Tenant shall
obtain and furnish to Landlord an endorsement to the public liability insurance policy
required to be carried by Tenant under Section 15.02 hereof to cover liabilities
incurred in connection with any work undertaken by Tenant.
Section 11.04. Signs.
Tenant shall not, without Landlord's prior written consent, place, suffer to be
placed, or maintain any sign, billboard, marquee, awning, placard, lettering,
advertising matter, or other thing of any kind, whether permanent or temporary, on the
exterior of the premises, or in or on any glass window, window showcase, or door of the
premises. In the event of any violation of this Section 11.04 by Tenant, Landlord may
take such action.as it sees fit to abate such violation, and Tenant shall pay to
Landlord all expenses incurred by Landlord in connection therewith.
Section 11.05. Compliance with Laws and Insurance Requirements.
Tenant shall promptly comply with all laws, rules, regulations, requirements and
recommendations of governmental bodies and public authorities and of the local board of
fire underwriters rating bureau or other fire insurance rating organization for the area
in which the premises are situated and of Landlord's insurers, pertaining to the
premises or the use and occupancy thereof, or to fire preventive, warning and
extinguishing apparatus. Tenant shall not do or suffer to be done, or keep or suffer to
be kept anything in or about the premises which will contravene any of Landlord's
insurance policies on the Center or any part thereof (including, without limitation,
fire, casualty, liability, boiler and rent insurance) or which will prevent Landlord
from procuring such policies in companies reasonably acceptable to Landlord, or which
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will impair Landlord's rights to collect on any insurance policy; and if anything done,
omitted to be done or suffered to be done by Tenant (including, without limitation,
failure to occupy the premises) or kept, or suffered by Tenant to be kept in or about
the premises shall cause the rate of any such insurance on the premises or on any other
part of the Center to be increased above the rate applicable to the least hazardous type
of retail occupancy legally permitted in the Center or shall cause any policy of
Landlord's to be canceled or result in the.disturbance of an insurance recovery, then
Tenant will pay the increase in premium promptly upon Landlord's demand, or indemnify
Landlord for any loss to the extent that insurance proceeds are insufficient to fully
cover such loss, as the case may be.
ARTICLE XII
MECHANIC'S LIENS AND OTHER LIENS
Section 12.01. Mechanic's and Materialmen'S Liens.
If any mechanic's or other lien is filed against any part of the Center by reason
of any labor, material or service furnished or alleged to have been furnished to Tenant
or for any change, alteration, addition or repair to the premises made by Tenant, Tenant
shall cause such lien to be released of record by payment, bond or otherwise as allowed
by law, at Tenant's expense, within five (5) days after the filing thereof; and Tenant
shall, at its expenses, defend any proceeding for the enforcement of any such lien,
discharge any judgment thereon and save Landlord harmless from all losses and expenses
resulting therefrom, including counsel fees and other expenses incurred by Landlord, if
it elects to defend or participate in the defense of such proceeding.
Section 12.02. Other Liens.
Tenant shall not permit the premises to be subjected to any statutory lien by
reason of any act or omission on the part of Tenant or any of its approved
concessionaires, licensees or subtenants or their respective agents, servants, employees
or contractors; and in the event that any such lien attaches to the premises or the
Center, Tenant shall discharge the same promptly by payment, bond or otherwise as
allowed by law, at its own expense, within five (5) days after the filing thereof.
ARTICLE XIII
ROOF, WALLS AND INTERIOR
Section 13.01. Use of Roof and Walls by Landlord.
Landlord reserves the exclusive rights to the use of all or any part of the roof
of the premises, air space above, and the rear and side walls of the premises, for
support or other purposes.
Section 13.02. Pipes and Conduits.
Landlord reserves the right to install and maintain pipes, conduits, wires and
ducts in and through the premises to serve any other part of the Center, so long as any
visible installation does not unreasonably interfere with the use or appearance of the
premises.
ARTICLE XIV
RADIUS RESTRICTION
Section 14.01. Radius Restriction.
Tenant covenants for itself, and for any subsidiary corporation (if Tenant is a
corporation), and for every partner in Tenant (if Tenant is a partnership) that so long
as this Lease is in force and effect, or until the fixed termination date under Section
2.01 in case of premature termination of this Lease by Landlord due to default by the
Tenant, neither Tenant nor any such subsidiary or partner shall, within three (3 mile
of any boundary of the Center, directly or indirectly own, lease (as landlord or
tenant), operate, or be financially interested in a business of the type permitted to be
conducted on the premises under Section 6.01(a).
ARTICLE XV
PUBLIC LIABILITY AND INSURANCE
Section 15.01. Damage to Landlord's Property.
Tenant shall indemnify Landlord for any damage to any property of Landlord in the
Center caused by or arising out of or in connection with any act or omission of Tenant,
its employees, servants, agents, or contractors, or Tenant's occupancy or use of the
premises or common areas, or any thing, matter or condition of, on or pertaining to the
10 � c
premises, or any breach by Tenant of any term, covenant or condition of this Lease to be
performed or observed by Tenant.
Section 15.02. Indemnity of Landlord.
(a) Indemnity of Landlord. Tenant shall defend, indemnify, and save Landlord
harmless from and against any and all claims, actions, demands, damages, liability and
expenses (including counsel fees) for injury to the property of others and injury or
death of persons, which is caused by or arises out of or in connection with Tenant's use
or occupancy of the premises or the common areas, or any thing, matter or condition of,
on or pertaining to the premises, or any act or omission of Tenant, its agents,
employees, servants or contractors, or out of a breach by Tenant of any term, covenant
or condition of this Lease to be performed or observed by Tenant.
(b) Liability Insurance. Throughout the term Tenant shall, at its expense,
maintain commercial general public liability insurance, automobile liability insurance,
boiler liability insurance (if applicable to the premises), and sprinkler damage
liability insurance, covering personal injury and property damage occurring on the
premises, which shall include Tenant as named insured and Landlord as additional
insured, and shall include contractual indemnity coverage for Tenant's liability under
Section ]5.02(a). Such policy shall have minimum liability limits of one Million
Dollars ($1,000,000.00) for bodily injury or death of one person, Two Million Dollars
$2,000,000.00) for injury or death of more than one person in any one accident, and One
Million Dollars $1,000,000.00) for property damage for each accident; and all such
policies shall be written on an occurrence basis. The minimum limitations above set
forth shall, at Landlord's option, be increased on every fifth anniversary of the
commencement date of the term by Twenty percent (20%) of the limitations then applicable
under the provisions of this Section 15.02(b).
(c) Plate Glass Insurance. Throughout the term, Tenant shall, at its expense,
maintain plate glass insurance for the full replacement value of all of the plate glass
in the premises.
(d) Throughout the term Tenant shall, at its expense, maintain rental value
and /or business interruption insurance in amounts not less than the rent and additional
rent required to be paid hereunder. To the extent possible, Tenant hereby assigns to
Landlord that portion of the insurance proceeds payable thereunder equal to the rent and
additional rent, and Tenant shall notify the insurance company of this assignment and
request that any such proceeds be paid directly to Landlord.
(e) Carrier Rating. All insurance required under this Lease shall be written
with insurance companies licensed to do business in the State in which the premises are
located and rated by Best's Manual A+ as to general policy holders rating, and Class XII
or higher as to financial rating, and shall contain an endorsement requiring thirty (30)
days prior written notice to Landlord of any modification, cancellation or surrender.
(f) Delivery of Policies. Prior to the beginning of the term, Tenant shall
deliver to Landlord the original insurance policies required to be carried under this
Article and Articles XVII and XIX bearing a notation by the insurer or its agent that
the premium is paid; and renewal certificates of each such policy shall be delivered to
Landlord at least thirty (30) days prior to the expiration of any policy term bearing a
notation that the renewal premium has been paid. The insurance required to be carried
by Tenant under this Section 15.02 may be carried under a policy commonly known as a
"blanket policy ", but Tenant shall furnish to Landlord a copy of such policy, any
endorsements thereto required by this Article, and evidence of Landlord's coverage under
such policy.
ARTICLE XVI
TAXES
Section 16.01. Real Estate Taxes.
Commencing on the Extras Commencement Date, in addition to all rentals herein
reserved, Tenant shall pay Landlord annual and /or semi - annual real estate taxes and
assessments levied upon the premises and the underlying realty, together with a pro rata
share of such taxes and assessments levied upon the common areas of the Center.
Tenant's pro rata share of the real estate taxes and assessments on the common areas
shall be determined by the ratio that the gross leased floor area of the premises (as
hereinafter defined) bears to the total gross leasable floor area of buildings in the
Center. The amounts payable hereunder shall be payable within ten (10) days after
receipt of a semi - annual or annual statement to be sent by Landlord to Tenant setting
forth the amount of such tax based upon the actual tax bill received by Landlord.
Notwithstanding the foregoing, Landlord, at its option, shall have the right to estimate
the amount of taxes next due and to collect and impound from Tenant on a mo nthly , `-
11 �`
quarterly, or such other basis as Landlord, in its discretion, may determine the amount
of Tenant's estimated tax obligation. within ninety (90) days following receipt of the
actual tax bill, Landlord shall provide to Tenant a reconciliation of Tenant's impound
account. In the event the premises are not separately assessed, the applicable taxes
and assessments shall be determined by the ratio that the gross leased floor area of the
premises bears to the total gross l floor area of the buildings in the Center
which are covered by the tax bill which includes premises. The taxes and assessments
for the year in which this Lease commences or ends shall be apportioned and adjusted.
with respect to any assessment which may be levied against or upon the premises and
which, under the laws then in force, may be evidenced by improvements or other bonds
payable in annual installments, only the annual payments on said assessment shall be
included in computing Tenant's obligation for real estate taxes and assessments. The
term "real estate taxes and assessments" as used herein shall be deemed to mean all
taxes imposed upon the real property and permanent improvements constituting the Center,
including the premises and common areas and all assessments levied.against said Center
and /or any portion thereof together with the reasonable cost (including fees of
attorneys, consultants and appraisers) of any negotiation, contest or appeal pursued by
Landlord in an effort to reduce any such tax, assessment or charge, but shall not
include personal income taxes, personal property taxes, inheritance taxes or franchise
taxes levied against the Landlord, but not directly against said property, even though
such taxes may or shall become a lien against said property.
Notwithstanding anything to the contrary contained herein, upon the Extras
Commencement Date, Tenant shall pay to Landlord its proportionate share of the real
estate taxes and assessments for the ba of the current tax year. In addition,
Tenant shall pay any deficit due as a result of Tenant's Extras Commencement Date as it
relates to the fiscal year used by the taxing authorities, upon receipt of an invoice
from Landlord. Notwithstanding the foregoing, Tenant shall continue to make the monthly
payments as stipulated above beginning on the Extras Commencement Date and the total
charges and payments shall be adjusted as set forth herein.
Section 16.02. Licenses and Permits.
Tenant shall be responsible for obtaining all permits respecting Tenant's use and
occupancy of the premises, and shall pay all minor privilege charges, occupancy permit
fees, license fees or other charges or taxes which are imposed on or with respect to the
premises or the use and occupancy thereof.
Section 16.03. Taxes on Rentals and Other Sums Payable by Tenant.
Tenant shall pay Landlord, in addition to and along with the rental otherwise
payable hereunder, a sum equal to the aggregate of any municipal, city, county, state or
federal excise, sales, use or privilege taxes legally levied or imposed, or hereafter
legally levied or imposed, during the term hereof or any extension or renewal hereof,
against or on account of the amounts payable hereunder or the receipts thereof by
Landlord (except state, federal or any other income taxes imposed or levied against
Landlord), which shall be paid monthly with the installments of rental as hereinabove
provided.
Section 16.04. Personal Property Taxes.
Tenant shall pay, prior to delinquency, all taxes levied upon fixtures,
furnishings, equipment and all other personal property belonging to Tenant and placed on
the premises by the Tenant. In the event any or all of the Tenant's fixtures,
furnishings, equipment and other personal property shall be assessed and taxed with the
Landlord's real property, the Tenant shall pay to Landlord its share of such taxes
within ten (10) days after delivery to Tenant by Landlord of a statement setting forth
the amount of such taxes applicable to the Tenant's property.
ARTICLE XVII
TENANT'S PROPERTY
section 17.01. Trade Fixtures.
(a) All trade fixtures and equipment (called "fixtures" in this Article)
installed by Tenant in the premises shall be new at the time of installation and shall
be owned, leased or financed in the name of Tenant only. Promptly upon Landlord's
request, Tenant shall furnish Landlord with evidence of the nature of its interest in
such fixtures. Throughout the term, such fixtures shall be maintained by Tenant in
attractive condition and in good repair, and shall remain the property of Tenant. Such
fixtures shall be removable at the expiration of the term of this Lease if Tenant is not
then in default under this Lease, and shall be removed by Tenant at the end of the term
upon Landlord's demand; and upon removal Tenant shall repair any damage to the premises
caused by installation or removal of such fixtures and any wear and tear caused by the
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presence or use of such fixtures. The term "fixtures" does not include any items to be
installed or paid for by Tenant under Section H of Exhibit 2 .
(b) Tenant hereby grants to Landlord a security interest in all of its fixtures
from time to time located on the premises, as security for the payment of rent and the
performance of Tenant's other obligations under this Lease to the extent of the
reasonable value of such fixtures; and Tenant shall on request furnish to Landlord an
itemized list of such fixtures (with serial numbers), and shall execute upon request a
standard financing statement and any further documents evidencing this assignment which
may, in the reasonable judgment of Landlord, be required under law to perfect the
security interest of Landlord and shall pay to Landlord all costs and taxes for
recording such financing statement. Upon any default by Tenant under this Lease,
Landlord may foreclose on the security interest created by this subsection. Upon any
such foreclosure, if Landlord elects to conduct a private sale of the collateral, then
Landlord shall be entitled to purchase the Tenant's interest in the collateralized
fixtures for an amount equal to the original cost of such fixtures, less accumulated
depreciation thereon from the date of installation (computed by the double declining
balance method of depreciation over a life based upon applicable IRS Guidelines), and
less any principal balance and interest due by Tenant to the holder of any prior lien
upon such fixtures.
(c) Prior to the beginning of the term and at any other time Tenant installs
fixtures in the premises, Tenant shall obtain agreements, in form satisfactory to
Landlord, from the lessors and holders of all security interests in Tenant's fixtures on
the premises, providing that; (i) before such fixtures are removed or sold by reason of
Tenant's default under any fixture lease or security agreement, such lessor or security
holder shall give Landlord written notice of its intention to foreclose or repossess
such fixtures, and Landlord shall have sixty (60) days thereafter in which to, assume
Tenant's obligation under any such fixture lease or to purchase any security interest in
fixtures for the outstanding debt secured thereby; (ii) the lessor or security holder
shall not remove such fixtures during the said sixty (60) day period without Landlord's
approval; (iii) notwithstanding item (ii) hereof, upon termination of this Lease the
lessor or security holder shall remove such fixtures within thirty (30) days after
notice from Landlord to do so, or within thirty (30) days after the expiration of the
aforesaid sixty (60) day period in the absence of notice of removal, and upon failure to
do so such fixtures shall, at Landlord's option, be considered to be abandoned property
and may be removed by Landlord at the expense of the lessor or security holder; and (iv)
if such lessor or security holder removes any such fixtures, it will repair any damage
to the premises caused either by the installation or by the removal thereof.
Section 17.02. Negligence of Landlord and Acts of Other Tenants.
(a) Tenant shall carry standard fire and extended coverage insurance on its
trade fixtures, merchandise and other personal property in the premises for their full
replacement value and the provisions of Section 15.02 (e) and (f) shall apply with
respect to such insurance. Landlord shall not be liable to Tenant for any damage to any
such property or to any property required to be insured by Tenant pursuant to Section
19.01 from any cause, unless (i) such damage is due to Landlord's negligence, and (ii)
such damage is caused by an occurrence which is not an insured hazard under the standard
fire and extended coverage insurance which is available for insuring such property of
Tenant at the time of the loss; it being understood that it is not the intention of the
parties that Landlord be relieved from liability to Tenant for negligence contrary to
any statute or public policy of the State in which the Center is located, but rather
that Tenant avail itself of available insurance coverage without subjecting Landlord to
liability for losses that could have been insured, and without subjecting Landlord to
subrogation claims of any insurer.
(b) Landlord shall not be liable to Tenant for damage to Tenant or to Tenant's
property due to the negligence or intentional acts of any other tenant in the Center or
to any condition existing on or emanating from the premises of any other tenant which is
caused by such tenant or its agents or contractors, nor shall Tenant be entitled to an
abatement of rent or to claim an actual or constructive eviction, whole or partial,
permanent or temporary, by reason of any such condition on or emanating from such other
tenant's premises.
ARTICLE XVIII
LANDLORD'S ENTRY ON PREMISES
Section 19.01. Landlord's Entry.
Landlord and its representatives may enter the premises at any time to inspect the
premises, to enforce the provisions of this Lease, to make repairs required of it
hereunder, if any, to rectify defaults of Tenant pursuant to the rights granted to
Landlord under Section 23.01, to make repairs to other premises in the Center, to check
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the temperature in the premises, and to repair any utility lines or system or systems
servicing other parts of the Center, or to rectify any condition in the premises
adversely affecting other occupants of the Center. Landlord may bring upon the premises
all things necessary to perform any work done in the premises pursuant to this Section
18.01. If the premises shall not be open for business at any time Landlord deems it
necessary to enter therein, Landlord may enter the premises by means of a master key, or
by force, and Tenant hereby waives all claims against Landlord or its agents which may
arise by reason of any such entry. Nothing herein contained shall be deemed or
construed to impose upon Landlord any obligation or responsibility whatsoever for the
care, maintenance or repair of the premises, except as otherwise specifically provided
in this Lease. Any work performed by Landlord hereunder shall be completed
expeditiously, subject to delays excusable under Section 9.01. Tenant shall permit
Landlord, at any time within ninety (90) days prior to the expiration of this Lease, to
place upon the premises any usual or ordinary "For Lease" signs and during such ninety
(90) day period Landlord or Landlord's agents may, during normal business hours, enter
upon the premises and exhibit same to prospective tenants.
ARTICLE XIX
FIRE AND OTHER CASUALTY
Section 19.01. Fire and Other Casualty.
If the premises shall be damaged or destroyed by fire, or other casualty included
in the standard extended coverage endorsement to fire insurance policies used in the
State in which the Center is located, Landlord shall, with reasonable diligence, but
subject to delays in adjusting the insurance loss and excusable delays under Section
9.01, repair the damage to (or replace) those parts of the premises and the facilities
therein which were originally constructed and /or installed by Landlord at its expense
under Exhibit 2 . If Landlord makes any such repairs or replacements because of damage
arising out of any casualty (or if damage arising out of any casualty is limited to
those parts of the premises and the facilities therein which were originally constructed
and /or installed by Tenant or at Tenant's expense under Exhibit 2 and /or other leasehold
improvements made by Tenant on the premises), then Tenant shall with reasonable
diligence repair the damage to (or replace) those parts of the premises and the
facilities therein which were originally constructed and /or installed by Tenant or at
Tenant's expenses under Exhibit 2 , and all other leasehold improvements made by Tenant
on the premises. Notwithstanding the foregoing, if as a result of any 'casualty the
premises is substantially destroyed, or the building in which the premises is located is
substantially destroyed or damaged (irrespective of damage to the premises), then
Landlord may, by written notice to Tenant within six (6) months after such occurrence,
elect to terminate this Lease, in which event this Lease shall terminate on the date
specified in such notice, and all obligations of the parties hereunder shall be adjusted
as of such date. Except as otherwise provided in this Section 19.01, this Lease shall
not terminate as a result of any damage or destruction to,the premises.
Tenant shall carry standard fire and extended coverage insurance, including
sprinkler damage, vandalism and malicious mischief, for the full replacement value of
those parts of the premises and the facilities therein which were originally constructed
and /or installed by Tenant or at Tenant's expense under Exhibit 2 , and on all other
leasehold improvements made by Tenant or at Tenant's expense. All such insurance shall
include Landlord and /or, at Landlord's option any holder of a deed of trust or mortgage
upon the premises, as named insureds. In the event of termination of this Lease for any
reason, said insurance policy and the right to all proceeds thereunder shall belong to
Landlord.
Landlord shall maintain fire and extended coverage insurance throughout the term
of this Lease in an amount not less than eighty percent (80 %) of the replacement value
of the premises or such higher amount as it may desire or which may be requested by any
lender placing a mortgage, deed of trust or other security device on the Center or any
part thereof. Tenant hereby waives any right of recovery from Landlord, Landlord's
officers and employees, and Landlord hereby waives any right of recovery from Tenant,
Tenant's officers or employees, for any loss or damage (including consequential loss)
resulting from any of the perils insured against in the standard form fire insurance
policy with extended coverage endorsement, and, additionally, the parties shall give
their respective insurance carriers notices of this waiver and secure a subrogation
waiver endorsement from each carrier. Commencing on the Extras Commencement Date,
Tenant agrees to pay Landlord Tenant's pro rata share of tffe cost of said insurance in
the proportion in which the gross leased floor area of the premises bears to the gross
l easab le floor area of all of the buildings in the Center covered by said insurance.
The amount requested to be paid hereunder shall be paid within ten (10) days after
written demand is sent by Landlord to Tenant. Notwithstanding the foregoing, Landlord,
at its option, shall have the right to estimate the amount of Tenant's pro rata share of
the cost of said insurance and to collect and impound from Tenant on a monthly,
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quarterly or such other basis as Landlord may, in its discretion, determine the amount
of Tenant's estimated pro rata share of such costs. within ninety (90) days after
payment of the premium for said insurance, Landlord shall provide Tenant with a
reconciliation of Tenant's impound account. Notwithstanding the foregoing, Landlord
shall, at its option, have the right to include the cost of the foregoing insurance as
p art o f the common area costs, and to collect and impound such cost as provided in
Section 7.03 of this Lease, or to bill Tenant separately for such cost.
During the term of this Lease, Landlord shall maintain property damage and public
liability insurance against claims for personal injury, death, or property damage
occurring on the common areas and such other insurance which it deems reasonably
necessary for the operation of the Center. The limits of liability of such insurance
shall be in such amounts as Landlord shall determine. Landlord shall have the option to
include such insurance in so- called "Blanket Policies" or such policies which Landlord
maintains to cover such items. Commencing on the Extras Commencement Date, Tenant shall
pay to Landlord, as additional rent, Tenant's pro rata share of the cost of all such
insurance maintained by Landlord. Tenant's pro rata share shall be determined by the
ratio that the floor area of the premises bears to the total leasable floor area of the
buildings in the Center. The amounts payable hereunder shall be paid by Tenant to
Landlord within ten (10) days after written demand is sent by Landlord to Tenant.
Notwithstanding the foregoing, Landlord shall, at its option, have the right to include
the cost of the public liability and property damage insurance on the common areas and
any other insurance maintained by Landlord as part of the common area costs, and to
collect and impound such cost as herein provided, or bill Tenant separately for such
cost.
with respect to any destruction (including any destruction necessary in order to
make repairs required by any declaration of any authorized public authority) which
Landlord is obligated to repair or may elect to repair under the terms of this Lease,
Tenant waives any statutory or other right Tenant may have to cancel this Lease as a
result of such destruction.
ARTICLE XX
EMINENT DOMAIN
Section 20.01. Effect of Total or Partial Condemnation.
If the premises is condemned in whole or part under the power of eminent domain,
this Lease shall terminate as to the part condemned on the date title or possession
vests in the condemning authority, whichever is first.
Section 20.02. Partial Condemnation Procedure.
If any condemning authority notifies Landlord of a proposed condemnation of more
than twenty -five percent (25 %) of the ground floor area of the premises, Landlord shall
give Tenant written notice of the proposed condemnation together with whatever plats and
data are furnished to Landlord by the condemnor concerning the extent of the proposed
condemnation of the premises. Tenant shall have fifteen (15) days after the date of
such notice in which to elect to cancel this Lease effective upon consummation of the
condemnation. If Tenant gives Landlord written notice of such election within said
fifteen (15) days, and if the proposed condemnation is consummated, then this Lease
shall terminate entirely on the same date that this Lease terminates as to the condemned
portion of the premises under Section 20.01. If Tenant does not make a timely election
to cancel this Lease, and the condemnation is consummated, then Landlord shall, subject
to the excusable delays under Section 9.01, restore the remaining premises as a complete
architectural unit; and the minimum rent hereunder shall thereafter be reduced
proportionately to the reduction in the ground floor area of the premises.
Section 20.03. Other Condemnation in the Center.
If more than twenty -five (25 %) of the ground floor area of the building in which
the premises is located or of other buildings in the Center is condemned under the power
of eminent domain, or if the nature, location or extent of any proposed condemnation
affecting the Center is such that Landlord elects in good faith to demolish all or
substantially all of the Center or of the building in which the premises is located,
then Landlord may terminate this Lease by giving written notice of termination to Tenant
at any time after such condemnation, and this Lease shall terminate on the date
specified in such notice.
Section 20.04. Condemnation Awards.
In the event of any condemnation of all or part of the premises or the Center,
Tenant shall not be entitled to share in any part of the condemnation award (including
consequential damages) for the taking, either for its leasehold estate or for its rights
15
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to use any of the common areas of the Center, whether or not this Lease is terminated
under the provisions of this Article XX by reason of such condemnation. Tenant shall,
however, be entitled to retain any separate award obtained from the condemning authority
for moving expenses, loss of trade fixtures, and loss of business, to the extent
compensable without diminution of Landlord's award.
Section 20.05. Condemnation After Discontinuance of Business.
All rights of Tenant under this Article XX to cancel this Lease or to receive
reductions of rent, and to claim the benefits of Section 20.01 as to a partial
condemnation, shall be operative only if Tenant is not in default of its obligation to
continuously conduct business under Section 6.02 on the date Landlord notifies Tenant of
any proposed condemnation.
Section 20.06. Definitions.
As used herein the terms "condemned" and "Condemnation" include the sale by
Landlord to a condemning authority under threat of condemnation. Landlord shall have
the power and authority to convey the entire fee simple title in all or any part of the
premises or the Center to the condemning authority without Tenant's joinder, and any
such conveyance by Landlord alone shall be deemed free and clear of any leasehold or
other interest by Tenant therein, and any condemning authority shall be entitled to rely
upon the provisions of this sentence in accepting a deed from Landlord alone. As used
herein the term "condemnation award" includes the proceeds of any sale by Landlord to a
condemning authority under threat of condemnation.
ARTICLE XXI
ADVERTISING CONTRIBUTION
Section 21.01. Advertising Contribution.
/NTENTIONALLY OMITTED.
ARTICLE XXII
BANKRUPTCY OR INSOLVENCY
Section 22.01. Bankruptcy.
If any transfer of Tenant's interest in the premises created by this Lease shall
be made under execution or similar legal process, or if a petition is filed by or
against Tenant to adjudicate Tenant a bankrupt or insolvent under any federal or state
law, or if a receiver or trustee shall be appointed for Tenant's business or property
and such appointment is not vacated within ten (10) days, or if a petition is filed by or against Tenant under any provision of federal or state law for a corporate
reorganization of Tenant or an arrangement with its creditors, or if Tenant makes an
assignment or deed of trust for the benefit of its creditors, or if in any other manner
Tenant's interest under this Lease shall pass to another by operation of law, then, in
any of said events, Tenant shall be deemed to have committed a material breach of this
Lease, and Landlord may, at its option, terminate this Lease and reenter the premises;
but, notwithstanding such termination, Tenant shall remain liable for all rent and
damages which may be due at the time of such termination and for the liquidated damages
set forth in Section 23.03 of this Lease. As used in this Section 22.01 the word
"Tenant" includes any guarantor of Tenant's obligations under this Lease. Nothing
herein or in Section 23.03 shall be deemed to preclude Landlord from obtaining the
maximum amount recoverable from Tenant under law in any proceeding referred to in this
Section 22.01; and Tenant hereby covenants that in the event of a termination or reentry
under this Section 22.01, Tenant shall be liable to Landlord for the maximum amount
recoverable from Tenant under the law pertaining to the proceeding resulting in such
reentry or termination by Landlord.
Section 22.02. Bankruptcy.
Notwithstanding the provisions of Section 22.01 hereof, if any provision of this
Article XXII shall be unenforceable by reason of any amendment to the federal bankruptcy
law, and any trustee in bankruptcy elects to assume or assign Tenant's rights and
obligations hereunder, Landlord may nonetheless terminate this Lease unless such trustee
(1) cures all defaults then existing hereunder, and (2) provides adequate assurances:
(i) of the source of rent and other consideration due under this Lease; (ii) that any
percentage rent due under this Lease will not decline substantially; (iii) that
assumption or assignment of this Lease will not breach any provision, such as a radius,
location, use or exclusivity provision, in any other lease, financing agreement or
master agreement relating to the Center; and (iv) that assumptions or assignment of this
Lease will not disrupt any tenant mix or balance in the Center.
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ARTICLE XXIII
DEFAULT AND REMEDIES
Section 23.01. Abatement of Tenant's Defaults.
If Tenant fails to maintain any insurance required to be maintained by it under
this Lease, or fails to furnish evidence of insurance renewals at the times in this
Lease required, or allows such insurance to lapse or be canceled, Landlord may obtain
such insurance for Tenant without notice. If Tenant defaults in the performance or
observance of any term, covenant or condition to be performed or observed by it under
this Lease, and such default continues for more than five (5) days after written notice
thereof, Landlord may take action to rectify such default on Tenant's behalf, and
Landlord may rectify such default on Tenant's behalf immediately and without such notice
if immediate action is reasonably believed to be required in order to avoid injury or
damage to other persons or property (including Landlord's property). Landlord may enter
the premises to rectify such defaults. All money advanced and costs and expenses
incurred by Landlord in rectifying any default (including Landlord's reasonable legal
fees) together with interest thereon at a rate equal to the lower of (i) the highest
rate permitted by law or (ii) eighteen percent (18 %) per annum from the date advanced
until the date paid by Tenant, shall be repaid by Tenant to Landlord on demand.
Section 23.02. Distraint and Default Rent.
If any payments o rent or additional rent are in arrears for more than ten (10)
days, (a) Landlord may distrain therefor, and shall be entitled to the benefit of a�TT
laws pertaining to distraint or actions in the nature of distraint; (b) Tenant shall pay
Landlord a late charge equal to ten percent Q %1 _ of the unpaid rent; and (c) beginning
on the 11th day of arrearage and continuing until such arrearage is paid, Tenant shall
be liable to Landlord for payment of additional rent (herein called "arrearage rent" for
the purpose of•this Section 23.02) for the period of such arrearage at an annual rate
equal to the lesser of (i) the highest rate permitted by law or (ii) eighteen percent
(18%) Any payments by Tenant to Landlord made after the accrual of arrearage rent may
be applied by Landlord to such arrearage rent irrespective of the obligation for which
Tenant may earmark such payment.
Section 23.03. Termination and /or Reletting for Default; Liquidated Damages.
If Tenant defaults in the payment of ren or additional rent payable under this
Lease, and such default continues for more than five (5) days after written notice
thereof; or if Tenant defaults in the performance or o seerrvance of any term, covenant or
condition to be performed by it hereunder which may be performed merely by the payment
of money and such default is not rectified within five (5) days after written notice
thereof; or if Tenant shall allow any insurance policy required to be carried by it
hereunder to lapse or to be canceled and does not cause such insurance to be replaced
and furnish Landlord with evidence of such replacement within five (5) days after
written notice of such lapse or cancellation from Landlord, its mortgagee, or the
insurer; or if Tenant defaults in the performance or observance of any other term,
covenant or condition of this Lease on its part to be performed or observed and does not
commence to rectify such default within fifteen (15) days after written notice thereof
or does not thereafter diligently complete the rectification thereof; or if Tenant
vacates or abandons the premises; or if any guarantor of this Lease breaches any
covenant of its Guaranty agreement; then, in any of such events, Landlord may, at its
option, (i) terminate this Lease and reenter the premises with or without application to
or process of law and without liability for any entry by force; or (ii) reenter the
premises in the aforesaid manner without terminating this Lease, and assume custody and
control thereof for the purpose of protecting the premises and /or for re- letting the
premises as agent for Tenant, if Landlord elects to re -let, and such agency shall be
deemed as a power coupled with an interest and shall be irrevocable; and in either such
event Landlord shall be entitled to the benefit of all provisions of the public general
laws of the State in which the Center is located and the public local laws and
ordinances of the locality in which the premises is located respecting the summary
eviction of tenants in default or tenants holding over, or respecting proceedings in
forcible entry and detainer. Notwithstanding the foregoing, Section 27,06 shall apply,
and:
(A) Tenant shall remain liable for any rent and damages which may be due or
sustained prior thereto, and shall pay Landlord for all costs and expenses, including
but not limited to, attorneys' and brokers' fees and expenses, paid or incurred by
Landlord in connection with: (i) obtaining possession of the premises; (ii) removal and
storage of Tenant's or other occupant's property; (iii) care, maintenance and repair of
the premises while vacant; (iv) reletting the whole or any part of the premises; and (v)
repairing, altering, renovating, partitioning, enlarging, remodeling, or otherwise
putting the premises, either separately or as part of larger premises, into condition
acceptable to, and reasonably necessary to obtain new tenants.
17
�` C
(B) In the event this Lease is terminated pursuant to clause (i) above, Tenant
shall further be liable to Landlord for liquidated damages to be calculated and payable
in one of the two following methods, which may be designated by Landlord at any time
within two (2) years after termination: (i) a lump sum payment in an amount equal to the
difference between the annual rent and additional rent payable for the balance of.the
term (including annual tax increases and insurance premium increases equal to the
maximum such increases paid or payable by Tenant during any year prior to termination,
and percentage rent at an annual rate equal to the maximum percentage rent paid or
payable by Tenant during any year prior to termination), and the fair rental value of
the premises for the balance of the term; provided, however, that if Landlord relets the
premises for all or a part of the balance of the term, then Landlord, may, at its
option, designate the monthly fair rental value of the premises for the balance of the
term as being equal to the average monthly rent payable by the new tenant; or (ii) the
monthly rent and additional rent payable by Tenant hereunder, which shall be payable
when due, less the rent, if any, received by Landlord from others to whom the premises
may be rented on such terms and conditions and at such rentals as Landlord, in its sole
discretion, shall deem proper. Pending a final election between (i) and (ii) above,
Landlord may collect rent under (ii) without prejudice to its option to make a final
election within the period specified herein.
(C) The obligations of Tenant under Section 14.01 hereof shall survive
termination of this Lease or reentry by Landlord without termination, pursuant to this
Section 23.03 until the fixed termination date fixed by Section 2.01, and shall be
binding upon Tenant until such date.
ARTICLE XXIV
CUMULATIVE REMEDIES AND GOVERNING LAW
Section 24.01. Remedies Cumulative.
Mention in this Lease of any specific right or remedy shall not preclude Landlord
from exercising any other right or remedy available at law or in equity, and the failure
of Landlord to insist in any one or more instances upon a strict or prompt performance
of any obligation of Tenant under this Lease or to exercise any option, right or remedy
herein contained or available at law or equity shall not be construed as a waiver or
relinquishment thereof, unless expressly waived in writing by Landlord. The waiver by
Landlord of any breach of this Lease shall not constitute a waiver of the covenant, term
or condition breached or of any subsequent breach of the same or any other covenant,
term or condition of this Lease, and the acceptance by Landlord of rent during the
continuance of any breach of this Lease by Tenant shall not constitute a waiver of such
breach. Whenever any provision of this Lease requires Landlord's consent to any act or
conduct of Tenant, such provision shall be construed to mean Landlord's written consent;
and knowledge of, or acquiescence by Landlord in, any such act or conduct shall not be
deemed a waiver of the requirement for written consent. Exercise by Landlord, or the
beginning of the exercise by Landlord, of any one or more of the rights or remedies
provided for in this Lease or now or hereafter existing at law or in equity or by
statute or otherwise shall not be construed as an election of remedies so as to preclude
the simultaneous or subsequent exercise by Landlord of any other right or remedy for
such breach. If Landlord obtains a judgment against the Tenant arising out of any
default by Tenant under this Lease, then Tenant shall pay Landlord all reasonable
counsel fees incurred by Landlord with respect to such default.
Section 24.02. Governing Law and Jurisdiction.
This Lease shall be construed under the laws of the State in which the Center is
located. The parties acknowledge that this Lease has been drafted, negotiated, made,
delivered and consummated in the State in which the Center is located. Tenant hereby
waives any objection to the venue of any action filed by Landlord against Tenant in any
state or federal court of the State in which the Center is located, and waives any claim
of forum non conveniens or for transfer of any such action to any other court.
Section 24.03. No Trial by Jury.
Landlord and Tenant hereby mutually waive trial by jury in any action, proceeding
or counterclaim brought by either of the parties hereto against the other with respect
to any matter arising out of or in any way connected with this Lease or the use and
occupancy of the premises. This waiver is knowingly, intentionally, and voluntarily
made by Tenant and Tenant acknowledges that neither Landlord nor any person acting on
behalf of Landlord has made any representations of fact to induce this waiver of trial
by jury or in any way to modify or nullify its effect. Tenant further acknowledges that
it has been represented (or has had the opportunity to be represented) in the signing of
this Lease and in the making of this waiver by independent legal counsel, selected of
its own free will, and that it has had the opportunity to discuss this waiver with
counsel. Tenant further acknowledges that it has read and understands the meaning and
18
ramifications of this waiver provision.
ARTICLE XXV
RECORDING; NO REDEMPTION OR MERGER
Section 25.01. Recording.
At the request of the holder of any mortgage or deed of trust on the Center,
Tenant shall record this Lease at its cost, among the Land Records of the political
subdivision in which the premises are located.
section 25.02. Waiver of Redemption.
Tenant hereby expressly waives any and all rights of redemption granted by or
under any present or future laws in the event of Tenant being evicted or dispossessed
for any cause, or in the event of Landlord obtaining possession of the premises by
reason of the violation by Tenant of any of the covenants and conditions of this Lease
or otherwise. The rights given to Landlord herein are in addition to any rights that
may be given to Landlord by any statute or otherwise.
Section 25.03. Waiver of Claim of Merger.
. If Landlord acquires title to the reversionary interest under any ground lease or
ground sublease from which its estate in the Center is derived, the merger of Landlord's
estate into or with such reversionary interest shall not effect an extinguishment of
this Lease and this Lease shall continue in force notwithstanding any such merger of
Landlord's estate and any reversionary estate; and Tenant agrees to execute any
instrument that may be required by Landlord, any mortgagee, prospective mortgagee, or
purchaser or prospective purchaser of the premises confirming that this Lease is in
force and effect notwithstanding any such merger.
ARTICLE XXVI
NOTICES
Section 26.01. Notices.
All notices from either party to the other under this Lease shall be sent by
telegram or by registered or certified mail, return receipt requested or hand delivered
with signed receipt. Whenever in this Lease reference is made to a notice to be given,
such notice shall be deemed to be given when mailed, wired or hand delivered to the
proper notice address of the party to be notified. Notices to Landlord shall be
addressed to it at P.O. Box 5678, Lutherville, MD 21094 -5678, or by overnight delivery
to 170 W. Ridgely Road, Suite 300, Lutherville, MD 21093. Notices to Tenant shall be
addressed to it at the premises. Either party may from time to time designate a
different address for receiving notices, by giving the other party notice of the change
of address in the manner above specified.
ARTICLE XXVII
MISCELLANEOUS PROVISIONS
Section 27.01. Successors and Assigns.
This Lease and the covenants, terms and conditions herein contained shall inure to
the benefit of and be binding upon Landlord, its successors and assigns, and shall be
binding upon and inure to the benefit of Tenant and its permitted successors and
assigns. As used herein the term "Tenant" includes its permitted successors and
assigns, and the term "Landlord" includes its successors and assigns.
The term "agents" and "employees" as used with respect to Tenant, shall include
sublessees, concessionaires, franchisees and licensees of Tenant approved by Landlord,
and the agents, servants and employees of such sublessees, concessionaires, franchisees,
and licensees.
If Landlord transfers its estate in the premises, or if Landlord further leases
the premises subject to this Lease, Landlord shall thereafter be relieved of all
obligations of Landlord expressed in this Lease or implied by law.
If Tenant obtains a money judgment against Landlord, any of its partners or its
successors or assigns under any provisions of, or with respect to this Lease or on
account of any matter, condition or circumstance arising out of the relationship of the
parties under this Lease, Tenant's occupancy of the building or Landlord's ownership of
the Center, Tenant shall be entitled to have execution upon such judgment only upon
Landlord's fee simple or leasehold estate in the Center (whichever is applicable), and
not out of any other assets of Landlord, any of its partners, or its successors or,
19
8�
assigns; and Landlord shall be entitled to have any such judgment so qualified as to
constitute a lien only on said fee simple, or leasehold estate, subject to any liens
antedating such judgment; provided, however, that this sentence shall be inapplicable to
the extent that the judgment against Landlord is covered by insurance.
Section 27.02. Tenant's Corporate Authority.
If Tenant is a corporation, it shall, concurrently with the signing of this Lease,
furnish to Landlord certified copies of the resolutions of its Board of Directors (or of
the executive committee of its Board of Directors) authorizing Tenant to enter into this
Lease; and it shall furnish to Landlord an opinion of independent counsel (in form
reasonably satisfactory to counsel for Landlord) that Tenant is a duly organized
corporation under the laws of the State of its incorporation, is qualified to do
business in the State in which the Center is located, is in good standing under the laws
of the State in which the Center is located, and has the power and authority to enter
into this Lease, and that all corporate action requisite to authorize Tenant to enter
into this Lease has been duly taken.
Section 27.03. Entire Agreement.
This Lease contains the final agreement between the parties hereto. Landlord shall
not have any obligation not expressly set forth herein; and neither party shall be bound
by any promises or representations prior to the date hereof which are not expressly set
forth herein.
Section 27.04. Captions; Deletions; Definitions.
The headings and captions used in this Lease are for convenience only and are not
a part of this Lease. If any printed provision of this Lease is deleted by the parties,
such deletion may not be utilized in interpreting the rights of the parties hereunder;
but each party shall have all rights which it would have had, at law or otherwise, if
such deleted provision had never been printed herein.
As used in this Lease, the term "calendar month" shall mean any of the twelve (12)
named months of the year; and the term "calendar quarter" shall mean a period consisting
of three (3) calendar months beginning on January 1, April 1, July 1, or October 1. If
the term of this Lease begins on a day other than the first day of a calendar quarter as
defined in this Section, the first calendar quarter of the term hereof shall be the
period beginning on the commencement date of the term and ending on the day preceding
the next calendar quarter during the term. If the term of this Lease ends on a day
other than the last day of a calendar quarter, the last calendar quarter of the term
shall be deemed to end on such date of termination.
Section 27.05. Site Plan.
Nothing shown on Exhibit 1 shall be deemed to be a representation by Landlord as
to any matter respecting the Shopping Center or as a condition of this Lease, unless
such representation or condition is expressly set forth herein, said Exhibit - 1 being
attached only for the purpose of showing the land encompassed in the Center, the
approximate size and location of the premises and Landlords present proposed layout of
the Center. Any reference to floor area of the premises shall be deemed to include area
measured to the center of party walls between tenants and to the outside of walls
between the premises and any service corridor and /or common areas. Landlord reserves
the absolute right to effect such other tenancies in the Center as Landlord, in the
exercise of its sole business judgment, shall determine to best promote the interests of
the Center. Tenant does not rely on the fact, nor does Landlord represent, that any
specific tenant or number of tenants shall, during the term of this Lease, occupy any
space in the Center.
Section 27.06. obligations Surviving Terminations.
If this Lease is terminated for any reason other than default of the Tenant, all
liabilities of the parties shall be adjusted as of the effective date of termination.
Any termination hereof by reason of a default of the Tenant shall not affect any
obligation or liability of Tenant under this Lease which accrued prior to the effective
date of termination, and all such obligations and liabilities of Tenant shall survive
such termination.
Section 27.07. Genders.
The use of the masculine, feminine or neuter gender herein shall be deemed to mean
the correct gender applicable, and the use of the singular shall include the plural, or
conversely, as the context may require.
20 C
Section 27.08. Modifications for Financing Reasons.
Tenant acknowledges that it has been advised that Landlord intends to procure some
part or all of the funds to finance the construction of the Center from one or more
financing institutions. If any such financing institution requires any modification of
the terms and provisions of this Lease as a condition to financing (including issuance
of a commitment) that Landlord obtains or may desire to obtain, then Tenant shall,
within fifteen (15) days after Landlord's request therefor, execute the necessary lease
amendment to accomplish such modifications; but notwithstanding anything in this
paragraph to the contrary, Tenant shall not be required to agree to any modification of
the provisions of this Lease relating to the amount or rate of rental reserved, the
purposes for which the premises may be used, the size and /or location of the premises,
the duration of the term or the commencement date, or the improvements to be made by
Landlord to the premises prior to commencement of the term.
Section 27.09. 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 to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall
not be affected thereby and every other term, covenant or condition of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
Section 27.10. Brokers.
Tenant represents and warrants that it has not dealt with any broker in respect
of this Lease other than Bennett Williams, and agrees to defend, indemnify and save
Landlord harmless against all demands, claims, and liabilities arising out of any
dealings between Tenant and any other broker in respect of this Lease.
Section 27.11. No Partnership.
By executing this Lease, Landlord does not, in any way or for any purpose, become
a partner or joint venturer of Tenant in the conduct of Tenants business, or otherwise.
Any provisions of this Lease regarding percentage rent are included solely for the
purpose of providing a method whereby the rent is to be measured and ascertained. Any
provisions of this Lease regarding the use of the premises or operation of Tenant's
business are included solely for the purpose of maintaining an orderly shopping center.
Section 27.12. Surrender of Premises.
At the expiration of the tenancy hereby created, or upon any reentry by Landlord
into the premises pursuant to Section 23.03, Tenant shall surrender the premises in the
same condition as the premises were upon the commencement of the original term of this
Lease, reasonable wear and tear excepted, and shall deliver all keys for the premises to
Landlord at the place then fixed for the payment of rent, and shall inform Landlord of
all combinations on locks, safes and vaults, if any, in the premises. Tenant shall
remove all of its trade fixtures and inventory and any alterations, additions or
improvements which Landlord requires to be removed pursuant to Section 11.03, before
surrendering the premises as aforesaid, and shall repair any damage to the premises
caused by such removal. Tenant's obligations to observe and perform this covenant shall
survive the expiration or other termination of the term of this Lease.
Section 27.13. No Option.
The submission of this Lease for examination does not constitute an option or
offer to lease space. This Lease shall have no binding effect on Landlord and Tenant
unless executed by the Landlord and the Tenant and a fully- executed original is
delivered to the Tenant.
Section 27.14. Relo cation.
Landlord reserves the right upon ninety (90) days prior written notice to Tenant,
to relocate Tenant to such other space, area, or floor within the Center as Landlord may
deem advisable or necessary, provided, that such other space or area shall be of a
similar nature and size to the premises. If such a relocation is effected, then upon
request of Landlord Tenant shall execute any Amendment to this Lease re- describing the
premises, but all other terms, covenants and conditions of this Lease shall remain in
full force and effect. Landlord shall pay all reasonable moving costs incurred by
Tenant in connection with such move and the reasonable coast to build out the new
premises to a condition substantially similar to the premises immediately prior to such
relocation. Should Tenant refuse to permit Landlord to move Tenant to such new space,
Landlord, in addition to any other remedies it may have by reason of Tenant's default
21 �` C
under this Lease, shall have the right to terminate this Lease by written notice to
'Tenant, effective as of the date of such notice.
Section 27.15. Tenant's Existing Lease Agreement.
Tenant currently occupies 1,500 square feet of floor area (the "Existing
Premises ") in the Center under a lease agreement dated June 28, 1991, as amended (the
"Existing Lease "). Tenant shall continue t opera its business in the Existing
Premises until Tenant opens for business in the premises. In addition, Tenant shall be
responsible for putting the Existing Premises into van she ll condition in accordance
with the requirements set forth on Exhibit 6 attached hereto immediately following the
date that Tenant opens for business in the in the premises. Tenant shall notify
Landlord when Tenant has completed the renovations to the Existing Premises. Upon the
date that the renovations to the Existing Premises have been completed in accordance
with Exhibit 6 , as determined by Landlord, then the Existing Lease shall terminate,
provided that Tenant has fulfilled all of its obligations under the Existing Lease. No
further documentation shall be required to effect the termination of the Existing Lease.
Tenant shall be responsible for the payment of all minimum rent and additional rent
under the Existing Lease until the termination date of the Existing lease.
22
IN WITNESS WHEREOF the parties hereto have executed this Lease under their
respective hands and seals as of the day and year first above written.
ATTEST: LANDLORD:
STONE��IG CE iT • LC
By: , / / // (SEAL)
PA, -te,- 6 'S °N �V:
WITNESS: /1 TENANT:
(SEAL)
BI CHEN
23
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II
SHOPPING CENTER
EXHIBIT 2
SPECIFICATIONS
A. LANDLORD, AT ITS COST AND EXPENSE, HAS CONSTRUCTED FLOOR, REAR AND SIDE WALLS, AND
THE ROOF, EXTENDED THE NECESSARY MAINS AND CONDUITS TO BRING WATER, SANITARY SEWER
SERVICE, AND ELECTRICITY TO THE PREMISES.
B. TENANT ACCEPTS THE PREMISES IN "AS -IS" CONDITION. TENANT SHALL BE RESPONSIBLE FOR
ALL IMPROVEMENTS TO THE PREMISES IN ORDER TO OPEN THE PREMISES FOR BUSINESS FOR
TENANT'S PERMITTED USE AND ALL LABOR, MATERIAL AND EQUIPMENT THEREFOR SHALL BE AT
TENANT'S COST AND EXPENSE.
All work included in or in addition to the foregoing shall be subject to Landlord's
approval as to design, materials and details.
C. PROVISIONS GOVERNING WORK PERFORMED BY TENANT,
1. All work performed by Tenant shall be performed in a first class and
workmanlike manner and with new materials.
2. Tenant shall be responsible for obtaining all permits required in connection
with the performance of its work.
3. Before Tenant or its contractors commence any work, they shall arrange with
Landlord for allocation of space for storage of equipment and materials and
for access to the site of the work. Storage of all materials and equipment
shall be confined to the areas from time to time designated by Landlord, and
access to the site of the work by Tenant's contractors, and their employees
and suppliers shall be confined to the routes from time to time designated by
Landlord.
4. Connections for utility service for Tenant and its contractors during the
construction period shall not be made without prior notice to Landlord and
without making arrangements satisfactory to Landlord for payment by Tenant
for such connections and service.
5. Tenant shall not engage any contractor for work respecting the premises
without Landlord's prior written approval of such contractor, which approval
shall not be unreasonably withheld.
6. Tenant shall require its contractors to comply with all reasonable
requirements of Landlord regarding coordination of work in the Center.
7. Tenant shall cause its contractors to remove and dispose of debris, rubbish,
surplus materials and temporary structures resulting from Tenant's work in
the premises, as may be necessary to avoid interference with construction or
when directed by Landlord.
8. Tenant shall cause its contractors to take all reasonable precautions to
protect other work in the Center from any damage owing to work performed by
Tenant's contractors; and Tenant shall indemnify Landlord for any damage to
any other work in the Center caused by Tenant's contractors.
9. If required by Landlord, Tenant shall cause its contractors to furnish
performance and labor and material payment bonds from a reputable surety
company and which shall include Tenant, Landlord, and other designees of
Landlord as obligees, without cost to Landlord or its designees.
10. If, in the opinion of Landlord's insurer, builder's risk insurance is
required to be carried on the improvements made by Tenant, in order to
prevent Landlord or its contractors from being deemed co- insurers under the
builder's risk insurance carried on the improvements constructed by Landlord,
Tenant shall carry builder's risk insurance on the work performed by Tenant
in such form and amounts as may be required by Landlord's insurers.
11. All work performed by Tenant shall be performed in compliance with applicable
laws and regulations.
12. Tenant shall cause its contractors to furnish the customary one year warranty
against defects in workmanship and materials, and in the event the Lease does
not commence or is terminated prior to the expiration of the warranty period
Ex2 -1
Landlord shall be entitled to the benefit of all such warranties, which are
hereby assigned to Landlord.
13. If any labor•dispute is caused or related to any of Tenant's contractors,
subcontractors or suppliers, Tenant shall, upon Landlord's demand, cause the
contractor, subcontractor or supplier causing, involved in or related to such
labor dispute to immediately cease work and deliveries in the Center until
further notice from Landlord.
Ex2 -2
SHOPPING CENTER
EXHIBIT 3
Common Area Costs
Operating and maintenance costs of the common areas shall mean, for the purposes of
Section 7.03 of the Lease, the total costs and expenses incurred in operating and
maintaining the common areas and any appurtenances thereto and facilities thereon (or in
or on unpaved outdoor areas of the Center or in adjacent public streets or rights of
way), including, but not limited to, the following:
1. Gardening, landscaping, and maintenance of grass, trees, and shrubbery;
2. All premiums for all insurance on the vehicle areas and on any equipment and
systems in or pertaining to all common areas, including, but not limited to, public
liability insurance, property damage insurance, automobile insurance, sign insurance,
and fire and extended coverage insurance;
3. watchman service and other security;
4. Personal property taxes on equipment and systems in, pertaining to, or used in
maintaining and operating all common areas;
5. Maintenance, repair, replacement, and cleaning of: paving, utility conduits,
pumping stations and force mains (on and /or off site) utilized for sanitary sewer and
water service in the Center, vehicle area lighting facilities, storm water management,
retention and drainage facilities and other utility conduits and facilities in the
common areas or in unpaved areas of the Center or public streets, Center signs and
wiring, retaining walls, curbs, gutters, fences, sidewalks, canopies, steps, escalators,
elevators and ramps on, to, or from the common areas and other areas of the Center or
public streets; exclusive of the cost for a replacement of an asset (or part) for which
a depreciation allowance is included hereunder if such replacement cost may not be
treated as an expense deduction under Internal Revenue Service Regulations;
6. Utility charges and other costs of lighting of the common areas and Center
signs and operating pumping stations, force mains and other like facilities;
7. Common area line painting and removal of snow and ice;
8. Collection and removal of trash from the common areas of the Center;
9. Depreciation of all machinery and equipment used in maintaining and operating
the common areas (including cleaning and snow removal equipment), and of Center signs,
traffic signals, sewer pumping stations and force mains (on and /or off site), which
depreciation shall be calculated on a straight line basis and on lives based upon the
Internal Revenue Service guidelines from time to time extant;
10. Power and fuel for operating vehicles and equipment used for cleaning,
maintenance and snow removal;
11. Salaries of personnel directly engaged in operating, cleaning and maintaining
the common areas (including security personnel and parking attendants), and all related
payroll charges and taxes; and
12. A charge for overhead equal to fifteen percent (15 %) of all of the foregoing
costs and expenses. r
Ex3-1
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SHOPPING CENTER
EXHIBIT 4
Rules and Regulations
Tenant shall at all times during the term of the Lease:
1. Use, maintain and occupy the premises in a careful, safe, proper and lawful
manner, keep the premises and its appurtenances, including adjoining areas and
sidewalks, in a clean and safe condition;
2. Keep the sidewalks and areas contiguous to the premises free of ice, snow and
litter;
3. Keep all glass in the doors and windows of the premises clean;
4. Not, without the prior written consent of Landlord, place, maintain or sell any
merchandise in any vestibule or entry to the premises, on the sidewalks adjacent to the
premises, or elsewhere on the outside of the premises;
5. Keep the premises in a clean, orderly and sanitary condition, free of insects,
rodents, vermin and other pests, and if by reason of any infestation of-the premises by
insects, rodents, vermin or other pests, any other store in the Center becomes infested
by any such condition, Tenant shall be responsible for exterminating any such condition
from other infested stores;
6. Not permit undue accumulations of garbage, trash, rubbish and other refuse in
the premises, keep refuse in closed containers within the interior of the premises until
removed, and arrange for regular removal of refuse at its expense;
7. Not use, permit or suffer the use of any apparatus or instruments for musical
or other sound reproduction or transmission in such manner that the sound emanating
therefrom or caused thereby shall be audible beyond the interior of the premises;
S. Not load or unload fixtures or merchandise from any premises entrance except
the rear delivery entrance;
9. Not deliver or suffer or permit delivery of merchandise -to, or collection of
refuse from, the premises after 11 :00 a.m, on any day;
10. Light the show windows and exterior signs of the premises to the extent that
Landlord may from time to time require;
11. Keep all mechanical apparatus free of vibration and noise which may be
transmitted beyond the confines of the premises;
12. Not cause or permit objectionable odors to emanate or be dispelled from the
premises
13. Not overload the floors or electrical wiring and not install any additional
electrical wiring or plumbing without Landlord's prior written consent;
14. Not use show windows in the premises for any purpose other than display of
merchandise for sale in a neat and attractive manner;
15. Not conduct, permit or suffer any public or private auction sale to be
conducted on or from the premises, fictitious fire sale or going out of business sale;
16. Not solicit business in the common areas of the Center or distribute hand bills
or other advertising materials in the common areas, and if this provision is violated
the Tenant shall pay Landlord the cost of collecting same from the common areas for
trash disposal.
In addition Tenant shall be responsible for the following:
a) Having the filters in the hoods to the food processing exhaust systems removed daily
and washed; (b) having the hoods scraped and cleaned a minimum of once every three (3)
months, or as designated by Landlord, a record of such cleaning to be presented to
Landlord's Center Manager; (c) installing grease traps in the premises and keep same
in a clean and sanitary condition and in good working order and repair, such traps to be
thoroughly cleaned on a monthly basis and a record of such cleaning to be presented to
Ex4 -1 Q
Landlord's Center Manager; and (d) if gas is used in the Premises, installing a proper
gas cut -off valve in the premises. Notwithstanding the foregoing, Landlord reserves the
right to have the grease traps in the premises cleaned on a monthly basis at Tenant's
sole cost and expense.
Ex4 -2
SHOPPING CENTER
EXHIBIT 5
TENANT'S CERTIFICATE
The undersigned, as Tenant, under certain lease dated
(the "Lease ") made with
as Landlord, hereby certifies
as follows:
(1) That the undersigned has entered into occupancy of the premises described in the
Lease;
(2) That the Lease is in full force and effect and has not been assigned, modified,
supplemented or amended in way, except
(3) That the same represents the entire agreement between the parties as to said
leasing;
(4) That the commencement date of the term of this Lease is
(5) That there is an unexpired term hereunder of years;
(6) That all conditions of the Lease to be performed by Landlord and necessary to the
enforceability of the Lease have been satisfied;
(7) That there are no defaults by either Tenant or Landlord hereunder;
(8') That no rents have been prepaid, other than as provided in the Lease;
(9) That on this date there are no existing defenses or offsets which the undersigned
has against the enforcement of the Lease by Landlord; and
(10) That it has received a set of keys to the premises on this date.
The undersigned hereby agrees:
(1) To disclaim all right, title or interest in the premises except the rights granted
by the Lease;
(2) Upon written request, to send a copy of any notice or demand given or made to the
Landlord pursuant to the provisions of the Lease, by registered mail to the owner
and holder of any first mortgage or deed of trust on the premises, or its assignee
upon being notified in writing of such mortgagee's (beneficiary's) or assignee's
name and address; and
(3) To give to the holder of said mortgage or deed of trust or its assignee the same
right as the Landlord has to cure any default complained of in said notice or
demand.
EXECUTED this day of 19
sy
By
Tenant
Ex5 -1
C
Exhibit 6
Condition of Existing Premises
1. Perimeter walls restored to drywall surface, sanded, spackled, and
taped, and ready to receive wall covering. Tile on walls in seating
area to remain.
2. Existing restroom(s) turned over in working condition.
3. Ceiling consistent throughout and in new or like new condition. New or
like new 2 x 4 drop ceiling grid, complete with new or like new 2 x 4
fissured tile throughout. All damaged or stained tiles to be replaced.
4. Existing HVAC system turned over in good working condition.
S. Tile floor in seating area to remain. Existing concrete slab turned
over in good condition. Floor drains to be filled with concrete and
level to balance of floor. Minor flash patching to be done by new
tenant.
6. Existing electrical service and distribution turned over in good working
condition. All existing lighting to be 2 x 4 lay -in fluorescent or
alternative acceptable to Landlord.
7. All existing interior partition walls to be demolished.
B. Storefront, door, door hardware, exit and emergency signs to be turned
over in good condition.
9. Space to be broom swept and free of debris and trash.
10. Demolish all kitchen equipment and pipes, plumbing, fire suppression,
and electric serving the kitchen equipment, and patch any holes in wall,
floor, ceiling, and roof.
11. Remove all mirrors and repair walls as required.
Ex6 -1
EXHIBIT "B"
Database: PREI CM Receivables Ledger Page: 1
BLDG: 439706 Prudential Real Estate Investment Date: 5/15/2013
Stonehedge Square Time: 02:51 PM
Occupancy Status: Current Inactive New 10/12 Through 05/13
Security Deposit Ending Balance through 04/13
I
Receipt Receipt
Bldg/Lease Date Category SR Description Debit Credit Balance Desc. Invoice Type
439706- EL6769 Great Wall Buffet Dong (646) 896.4665 Master Occp Id: Great Wa -1
Balance Forward 0.00
439706 EL6769 11/1/2012 EEC Estimated CAM Recover CH AUTOCHRG 330.00 330.00 000006
439706 EL6769 11/1/2012 EET Estimated Recovery of T CH AUTOCHRG 500.00 830.00 000006
439706 EL6769 11/1/2012 RTL Rent -Base Retail CH AUTOCHRG 5,342.74 6,172.74 000006
439706 EL6769 11/26/2012 RTL Rent -Base Retail CR Receipt 4,500.00 1,672.74 1611 000006 CHK
439706 EL6769 12/1/2012 EEC Estimated CAM Recover CH AUTOCHRG 330.00 2,002.74 000006
439706 EL6769 12/1/2012 EET Estimated Recovery of T CH AUTOCHRG 500.00 2,502.74 000006
439706 EL6769 1211/2012 RTL Rent -Base Retail CH AUTOCHRG 5,342.74 7,845.48 000006
439706 EL6769 12/27/2012 RTL Rent -Base Retail CR Receipt 4,500.00 3,345.48 1625 000006 CHK
439706 EL6769 1/1/2013 EEC Estimated CAM Recover CH AUTOCHRG 330.00 3,675.48 000006
439706 EL6769 1/1/2013 EET Estimated Recovery of CH AUTOCHRG 500.00 4,175.48 000006
439706 EL6769 1/1/2013 RTL Rent -Base Retail CH AUTOCHRG 5,342.74 9,518.22 000006
439706 EL6769 1/24/2013 RTL Rent -Base Retail CR Receipt 4,500.00 5,018.22 1640 000006 CHK
439706 EL6769 2/1/2013 EEC Estimated CAM Recover CH AUTOCHRG 330.00 5,348.22 000006
439706 EL6769 2/1/2013 EET Estimated Recovery of T CH AUTOCHRG 500.00 5,848.22 000006
439706 EL6769 2/1/2013 RTL Rent -Base Retail CH AUTOCHRG 5,342.74 11,190.96 000006
439706 EL6769 2/21/2013 RTL Rent -Base Retail CR Receipt 4,500.00 6,690.96 1662 000006 CHK
439706 EL6769 2/28/2013 LFE Legal Fees CH Legal FeesSirlin Les 1,134.77 7,825.73 000006
439706 EL6769 3/1/2013 EEC Estimated CAM Recover CH AUTOCHRG 330.00 8,155.73 000006
439706 EL6769 3/1/2013 EET Estimated Recovery of T CH AUTOCHRG 500.00 8,655.73 000006
439706 EL6769 3/1/2013 RTL Rent -Base Retail CH AUTOCHRG 5,342.74 13,998.47 000006
439706 EL6769 4/1/2013 EEC Estimated CAM Recover CH AUTOCHRG 330.00
14,328.47 000006
439706 EL6769 4/1/2013 EET Estimated Recovery of CH AUTOCHRG 500.00 14,828.47 000006
439706 EL6769 4/1/2013 LIFE Legal Fees CH sirlon less legal 255.00 15,083.47
439706 EL6769 4/1/2013 RTL Rent -Base Retail CH AUTOCHRG 5,342.74 20,426.21 000006
439706 EL6769 4/1/2013 RTL Rent -Base Retail CR Receipt 4,500.00 15,926.21 1677 000006 CHK
439706 EL6769 4/3/2013 WTR Direct Water Billings to CR Receipt 306.29 15,619.92 1685 CHK
439706 EL6769 4/11/2013 WTR Direct Water Billings to CH 1/22/13 - 2/20/13 385.54 16,005.46
439706 EL6769 4/11/2013 WTR Direct Water Billings to CH 10/17 -11/15 water 306.29 16,311.75
439706 EL6769 4/11/2013 WTR Direct Water Billings to CH 11/15 - 12118/12 376.45 16,688.20
439706 EL6769 4/11/2013 WTR Direct Water Billings to CH 12/18-1/22 380.09 17,068.29
439706 EL6769 4/12/2013 WTR Direct Water Billings to CR Receipt 380.09 16,688.20 1722 CHK
439706 EL6769 4/12/2013 WTR Direct Water Billings to CR Receipt 376.45 16,311.75 1690 CHK
439706 EL6769 4/15/2013 RTL Rent -Base Retail CR Receipt 4,500.00 11,811.75 1723 000006 CHK
Database: PREI CM Receivables Ledger Page: 2
BLDG: 439706 Prudential Real Estate Investment Date: 5/15/2013
Stonehedge Square Time: 02:51 PM
Occupancy Status: Current Inactive New 10/12 Through 05/13
Security Deposit Ending Balance through 04/13
Receipt Receipt
Bldg/Lease Date Category SR Description Debit Credit Balance Desc. Invoice Type
439706 EL6769 4/2512013 WTR Direct Water Billings to CR Receipt 385.54 11,426.21 893 CHK
439706 EL6769 4130/2013 LIFE Legal Fees CH sirlinlessor legal 297.50 11,723.71
439706 EL6769 5/1/2013 EEC Estimated CAM Recover CH AUTOCHRG 330.00 12,053.71
439706 EL6769 511/2013 EET Estimated Recovery of CH AUTOCHRG 500.00 12,553.71
439706 EL6769 511/2013 RTL Rent -Base Retail CH AUTOCHRG 5,342.74 17,896.45
439706 EL6769 5/7/2013 WTR Direct Water Billings to CH 2/20 -3/22 ems bILLII 383.72 18,280.17
439706 EL6769 5/13/2013 ARA Due Previous Owner NC 2012 Tax Reconcilia 6.93 18,273.24
439706 EL6769 5113/2013 EAT Recovery Taxes, Actual CH 2012 TaxReconciliat 1,320.62 19,593.86
439706 EL6769 5/13/2013 WTR Direct Water Billings to CR Receipt 383.72 19,210.14 1744 CHK
439706 EL6769 5/14/2013 ARA Due Previous Owner NC 2012 Cam Reconcili. 2,559.16 16,650.98
439706 EL6769 5/14/2013 CAI Common Area Maintenai NC 2012 Cam Reconcili. 120.91 16,530.07
Category Mo. Rep Charges Beg Balance Charges Cash Receipts N/C Credits Refunds End Balance Sec Dep Bal
ARA Due Previous Owner 0.00 0.00 0.00 0.00 2,566.09 0.00 - 2,566.09
CAI Common Area Maintenance -Act 0.00 0.00 0.00 0.00 120.91 0.00 - 120.91
EAT Recovery Taxes, Actual 0.00 0.00 1,320.62 0.00 0.00 0.00 1,320.62
EEC Estimated CAM Recovery 330.00 0.00 2,310.00 0.00 0.00 0.00 2,310.00
EET Estimated Recovery of Taxes 500.00 0.00 3,500.00 0.00 0.00 0.00 3,500.00
LIFE Legal Fees 0.00 0.00 1,687.27 0.00 0.00 0.00 1,687.27
RTL Rent -Base Retail 5,342.74 0.00 37,399.18 27,000.00 0.00 0.00 10,399.18
WTR Direct Water Billings to 0.00 0.00 1,832.09 1.832.09 0.00 0.00 0.00
Total: 6,172.74 0.00 48,049.16 28,832.09 2,687.00 0.00 16,530.07 4,851.00
Totals for 439706:
Category Mo. Rep Charges Beg Balance Charges Cash Receipts N/C Credits Refunds End Balance Sec Dep Bal
ARA Due Previous Owner 0.00 0.00 0.00 0.00 2,566.09 0.00 - 2,566.09
CAI Common Area Maintenance-Act 0.00 0.00 0.00 0.00 120.91 0.00 - 120.91
EAT Recovery Taxes, Actual 0.00 0.00 1,320.62 0.00 0.00 0.00 1,320.62
EEC Estimated CAM Recovery 330.00 0.00 2,310.00 0.00 0.00 0.00 2,310.00
EET Estimated Recovery of Taxes 500.00 0.00 3,500.00 0.00 0.00 0.00 3,500.00
LIFE Legal Fees 0.00 0.00 1,687.27 0.00 0.00 0.00 1,687.27
RTL Rent -Base Retail 5,342.74 0.00 37,399.18 27,000.00 0.00 0.00 10,399.18
WTR Direct Water Billings to 0.00 0.00 1,832.09 1,832.09 0.00 0.00 0.00
BLDG Total: 6,172.74 0.00 48,049.16 28,832.09 2,687.00 0.00 16,530.07 4,851.00
Database: PREI CM Receivables Ledger Page: 3
BLDG: 439706 Prudential Real Estate Investment Date: 5/15/2013
Stonehedge Square Time: 02:51 PM
Occupancy Status: Current Inactive New 10112 Through 05/13
Security Deposit Ending Balance through 04113
Receipt Receipt
Bldg/Lease Date Category SR Description Debit Credit Balance Desc. Invoice Type
Grand Totals:
Category Mo. Rep Charges Beg Balance Charges Cash Receipts N/C Credits Refunds End Balance Sec Dep Ball
ARA Due Previous Owner 0.00 0.00 0.00 0.00 2,566.09 0.00 - 2,566.09
CA1 Common Area Maintenance -Act 0.00 0.00 0.00 0.00 120.91 0.00 - 120.91
EAT Recovery Taxes, Actual 0.00 0.00 1,320.62 0.00 0.00 0.00 1,320.62
EEC Estimated CAM Recovery 330.00 0.00 2,310.00 0.00 0.00 0.00 2,310.00
EET Estimated Recovery of Taxes 500.00 0.00 3,500.00 0.00 0.00 0.00 3,500.00
LIFE L eg al Fees 0.00 0.00 1,687.27 0.00 0.00 0.00 1,687.27
RTL Rent -Base Retail 5,342.74 0.00 37,399.18 27,000.00 0.00 0.00 10,399.18
WTR Direct Water Billings to 0.00 0.00 1,832.09 1,832.09 0.00 0.00 0.00
Grand Total: 6,172.74 0.00 48,049.16 28,832.09 2,687.00 0.00 16,530.07 4,851.00
EXHIBIT "C"
SIRLIN LESSER & BENSON, P.C.
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
JON C. SIRLIN PENNSYLVANIA OFFICE
PETER A. LESSER* M S. BROAD STREET
JOHN D. BENSON* SUITE 2100
SUSAN J. KUPERSMITH* t PHILADELPHIA, PA 19109
DANA S. PLON* (215) 864 -9700
DOROTHYANNE HAMILL * PAX (215) 864 -9669
LISA M RUTENBERG **
JERRY L DREW NEW JERSEY OFFICE
PATRICK J. TROY 102 BROWNING LANE
KIERSTIN M. LANGE* BUILDING C
ADAM NACHMANI* CHERRY HILL, NJ 08003
NICHOLAS C. CAMPELLONE* (856) 616 -1900
r coum February 7, 2013 FAX (856) 216 -7459
" PA & NJ BAR
"• PA. NJ & MD
PERSONAL & CONFIDENTIAL
Bi Chen d/b /a Great Wall Buffet
Stonehedge Shopping Center
950 Walnut Bottom Road
Carlisle, PA 17013
Re: PR Stonehedge Square LP — Bi Chen d/b /a Great Wall Buffet
DEFAULT NOTICE — Stonehedge Shopping Center
Our File No. 19366
Dear Mr. Chen:
Please be advised of our representation of your Landlord at the Stonehedge Shopping
Center. I have been advised by my client that you are in default of the Lease dated June 6, 2001 for
failing to pay rent and proper charges through the date hereof in the amount of $11,940.96 which
includes legal fees in the current amount of $750.00.
This letter will serve as formal notice of default pursuant to Section 23.01(a) of the Lease.
Unless the arrearage is paid in full within five (5) days from the date of this letter, I have been
instructed to commence appropriate legal action against you for past due charges, possession of the
premises, additional attorney's fees, late fees, interest and accelerated rent through the remainder of
the lease term without further notice or delay..
w
SIRLIN LESSER & BENSON, P.C.
Please avoid the expense and inconvenience of litigation and execution by making
immediate payment and by contacting me to discuss this matter.
Sincerely,
PETER A. LESSER
PAL /dp
Via Certified and Regular Mail
cc: Alexis H. Goodyear
i'
i
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson -j, E r Fr'-';'
Sheriff
Jody S Smith '
Chief Deputy AM 10: 3
Richard W Stewart 4"
Solicitor 0Ffi"EcrF THE SH41Z IFP CUMBERLAQ Ct Ulisir'
PENfgSYLVAN11A
PR Stonehedge Square LP
Case Number
vs. 2013-2933
Bi Chen d/b/a Great Wall Buffett
SHERIFF'S RETURN OF SERVICE
05/30/2013 03:11 PM - Deputy William Cline, being duly sworn according to law, served the requested Complaint&
Notice by handing a true copy to a person representing themselves to be Kin Dong, Owner, who
accepted as"Adult Person in Charge"for Bi Chen d/b/a Great Wall Buffett at 950 Inut Bottom Road,
South Middleton Township, Carlisle, PA 17013.
LIAM CLINE, DEPUTY
SHERIFF COST: $34.78 SO ANSWERS,
May 31, 2013 RON R ANDERSON, SHERIFF
(c)CountySuite Sheriff,Teleosoft,Inc.
PR Stonehedge Square LP : IN THE COURT OF COMMON PLEAS OF
By Its Agent: Vastgood 7 Property : CUMBERLAND COUNTY, PENNSYLVANIA
Portfolio Mgmt, LLC
44 South Bayles Avenue
Port Washington,NY 11050
CIVIL ACTION—LAW
V.
Bi Chen d/b/a Great Wall Buffet
Stonehedge Shopping Center : NO. 2013-2933 CIVIL TFAM,
950 Walnut Bottom Road
Carlisle,PA 17013 =M
• cn r" _ :zt
, ` Cx
c=
ANSWER TO PLAINTIFF'S COMPLAINT
The Defendant, Hui Juan Dong, sister of Bi Chen, by and through her attorneys, Turo
Robinson, hereby responds to Plaintiffs Complaint and states the following:
COUNT I: BREACH OF CONTRACT
1. Admitted.
2. Admitted in part and denied in part. Defendant Hui Juan Dong(hereinafter "Ms. Dong"),
sister of Bi Chen, has been responsible for operating Great Wall Buffet located at 950 Walnut
Bottom Road, Carlisle, PA 17013 and making all lease payments to Plaintiff since 2005, a fact
that should be known to Plaintiff.
3. Admitted.
4. Admitted.
5. Denied. By way further answer, Ms. Dong repeatedly attempted to contact Plaintiff after,
the ten (10) year lease expired on March 31, 2012 and continued to attempt to contact Plaintiff
regularly for a period of months. In spite of hearing nothing whatsoever from Plaintiff regarding
the renewal of the lease terms, Ms. Dong continued to pay the full rental amount of$5,342.74
plus common area maintenance charges and real estate taxes through November 2012, when she
was required to reduce her monthly rental payments to $4,500 because the restaurant's business
was slow.
(a) Ms. Dong is without sufficient knowledge or information to form a belief about the
truth of the allegation.
(b) Ms. Dong is without sufficient knowledge or information to form a belief about the
truth of the allegation.
6. This is a legal conclusion to which no response is required. if it is deemed otherwise, this
averment is denied..
7. Admitted.
8. Ms. Dong is without sufficient knowledge or information to form a belief about the truth
of the allegation.
WHEREFORE,Ms. Dong respectfully requests that this Honorable Court find in favor of
Defendant and against Plaintiff and deny the relief requested.
COUNT II: EJECTMENT
9. No response is required.
10. No response is required.
WHEREFORE, Ms. Dong respectfully requests that this Honorable Court find in favor of
Defendant and against Plaintiff and deny the relief requested.
Respectfully submitted,
TURO ROBINSON
Attorneys at Law
Date Daniel L. Puskar, Esquire
Supreme Ct.No. 311444
129 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Defendant
VERIFICATION
I verify that the statements made in the foregoing Complaint for Custody are true and
correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.
§4904 relating to unsworn falsification to authorities.
l wL �(�rtCU�t
Date Hui Juan Dong
PR Stonehedge Square LP : IN THE COURT OF COMMON PLEAS OF
By Its Agent: Vastgood 7 Property : CUMBERLAND COUNTY, PENNSYLVANIA
Portfolio Mgmt, LLC
44 South Bayles Avenue
Port Washington,NY 11050 ;
CIVIL ACTION—LAW
V.
Bi Chen d/b/a Great Wall Buffet
Stonehedge Shopping Center : NO. 2013-2933 CIVIL TERM
950 Walnut Bottom Road
Carlisle, PA 17013
CERTIFICATE OF SERVICE
I hereby certify that on this day I served a true and correct copy of the foregoing Answer
on Peter A. Lesser, Esquire, by depositing same in the United States Mail, first class,postage
pre-paid, from Carlisle, Pennsylvania, addressed as follows:
Peter A. Lesser, Esquire
123 South Broad Street, Suite 2100
Philadelphia, PA 19109
TURO ROBINSON
Attorneys at Law
L
Date Daniel L. Puskar, Esquire
Supreme Ct. No. 311444
129 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Defendant
PR Stonehedge Square LP : IN THE COURT OF COMMON PLEAS OF
By Its Agent:Vastgood 7 Property : CUMBERLAND COUNTY,PENNSYLVANIAv
Portfolio Mgmt, LLC c °
44 South Bayles Avenue rrnCo
Port Washington,NY 11050
CIVIL ACTION—LAW )
V.
.r-,
Bi Chen d/b/a Great Wall Buffet -
Stonehedge Shopping Center :NO.2013-2933 CIVIL TERN?*
ERM
950 Walnut Bottom Road
Carlisle,PA 17013
ANSWER TO PLAINTIFF'S COMPLAINT
The Defendant, Bi Chen d/b/a Great Wall Buffet,by and through her attorneys,Turo
Robinson,hereby responds to Plaintiffs Complaint and states the following:
COUNT I: BREACH OF CONTRACT
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied. By way further answer,Defendant repeatedly attempted to contact Plaintiff after
the ten(10)year lease expired on March 31,2012 and continued to attempt to contact Plaintiff
regularly for a period of months. In spite of hearing nothing whatsoever from Plaintiff regarding
the renewal of the lease terms,Defendant continued to pay the full rental amount of$5,342.74
plus common area maintenance charges and real estate taxes through November 2012,when she
was required to reduce her monthly rental payments to $4,500 because the restaurant's business
was slow.
(a) Defendant is without sufficient knowledge or information to form a belief about the
truth of the allegation.
(b) Defendant is without sufficient knowledge or information to form a belief about the
truth of the allegation.
6. This is a legal conclusion to which no response is required. If it is deemed otherwise,this
averment is denied..
7. Admitted.
8. Defendant is without sufficient knowledge or information to form a belief about the truth
of the allegation.
WHEREFORE,Defendant respectfully requests that this Honorable Court find in favor i
of Defendant and against Plaintiff and deny the relief requested. �f
I
COUNT U: EJECTMENT
9. No response is required.
10. No response is required.
WHEREFORE,Defendant respectfully requests that this Honorable Court find in favor
of Defendant and against Plaintiff and deny the relief requested.
Respectfully submitted,
TURO ROBINSON
Attorneys at Law
Date Daniel L.Puskar, Esquire
Supreme Ct.No. 311444
129'South Pitt Street
Carlisle,PA 17013
(717)245-9688
Attorney for Defendant
i
PR Stonehedge Square LP : IN THE COURT OF COMMON PLEAS OF
By Its Agent:Vastgood 7 Property : CUMBERLAND COUNTY,PENNSYLVANIA
Portfolio Mgmt,LLC
44 South Bayles Avenue
Port Washington,NY 11050
CIVIL ACTION—LAW
V.
Bi Chen d/b/a Great Wall Buffet
Stonehedge Shopping Center :NO. 2013-2933 CIVIL TERM
950 Walnut Bottom Road .
Carlisle,PA 17013
CERTIFICATE OF SERVICE i
I hereby certify that on this day I served a true and correct copy of the foregoing Answer
on Peter A. Lesser,Esquire,by depositing same in the United States Mail,first class,postage
pre-paid,from Carlisle,Pennsylvania,addressed as follows:
Peter A. Lesser,Esquire
123 South Broad Street, Suite 2100
Philadelphia,PA 19109
TURO ROBINSON
Attorneys at Law
Date Daniel L. Puskar,Esquire
Supreme Ct.No. 311444
129 South Pitt Street
Carlisle,PA 17013
(717)245-9688
Attorney for Defendant
VERIFICATION
I verify that the statements made in the foregoing Complaint for Custody are true and
correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.
§4904 relating to unsworn falsification to authorities.
Z 1
Date BI Chen
i
SIRLIN LESSER& BENSON, P.C. T
Peter A. Lesser, Esquire (#59433) LI f'`i' ,
plesser @sirlinlaw.com `'J T ' i :
Lisa M. Rutenberg, Esquire (#94738) GUI'',!I.j n ,
�����s�!J ('gar T
lutenberg@sirlinlaw.com r ; ; "L j it l;UN Y
123 South Broad Street, Suite 2100
Philadelphia,PA 19109
(215) 864-9700 Attorneys for Plaintiff
PR STONEHEDGE SQUARE, L.P., : COURT OF COMMON PLEAS
By Its Agent: Vastgood 7 Property Management Co. : CUMBERLAND COUNTY
vs. • No. 2013-2933
•
BI CHEN d/b/a Great Wall Buffet
PLAINTIFF PR STONEHEDGE SQUARE,L.P.'S
MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiff,through its attorneys, Sirlin Lesser& Benson, P.C., moves for judgment on the
pleadings and avers:
PROCEDURAL BACKGROUND
1. This matter is an action by a landlord against a tenant for amounts due and owing
pursuant to a commercial lease and for possession of the premises. Judgment should be granted
in favor of Landlord and against Tenant because Tenant admits all operative facts to establish her
breach of lease and does not present any legal defense.
2. On May 23, 2013, Plaintiff ["Landlord"] filed a Complaint against Defendant
alleging amounts due and owing pursuant to a commercial lease and seeking possession of the
premises. A true and correct copy of the Complaint is attached hereto as Exhibit "1".
3. On June 18, 2013, Tenant's sister filed an Answer to the Complaint alleging that
she, not Tenant, was operating the business located in the leased premises. A true and correct
copy of Tenant's sister's Answer is attached hereto as Exhibit "2".
4. On June 27, 2013, in response to Landlord's June 24, 2013 Notice of Intention to
Take Default, Tenant filed an Answer to the Complaint. A true and correct copy of Tenant's
Answer is attached hereto as Exhibit "3".
5. The pleadings in this matter are closed and Landlord may move for judgment on the
pleadings pursuant to Pa. R.C.P. 1034.
UNDISPUTED FACTS
6. Landlord's Complaint alleges breach of lease for failure to pay amounts as due and
after notice of default. See Exhibit 1.
7. In their Answers, Tenant (and Tenant's sister) admit the existence of and parties to
the lease in this matter and admit that a true and correct copy of the lease is attached to the
Complaint as Exhibit A ["Lease"]. See Exhibits 1, 2 and 3 at¶3.
8. In their Answers, Tenant (and her sister) admit that, pursuant to the Lease, Tenant is
responsible for the payment of monthly rent in the amount of $5,342.74 plus common area
maintenance charges and real estate taxes. See Exhibits 2 and 3 at¶4.
9. In their Answers, Tenant (and Tenant's sister) do not present any valid legal defense
to Landlord's claims. See Exhibits 2 and 3.
10. In their Answers, Tenant (and Tenant's sister) admit that they have not paid rent as
due — they admit that in November 2012 Tenant unilaterally and without Landlord's consent
reduced the rent payment to $4,500 because "the restaurant's business was slow." See Exhibits 2
and 3 at 115.
2
11. Tenant (and Tenant's sister) admit that Landlord provided notice of default to
Tenant by letter dated February 7, 2013. See Exhibits 2 and 3 at¶7.
12. Tenant's admitted failure to pay rent as due constitutes a default of Lease pursuant
to Section 23.01 of the Lease. See Exhibit A, §23.01,to Exhibit 1.
13. Pursuant to the Lease, Tenant is responsible for the payment of a late fee of 10% on
unpaid balances. See Exhibit A, §23.02, to Exhibit 1.
14. Pursuant to the Lease, Tenant is responsible for the payment of legal fees and costs
to bring suit for the collection of rent. See Exhibit A, §23.03(A), to Exhibit 1.
15. At the time Landlord filed its Complaint, the amount due and owing pursuant to the
Lease was $16,530.07, plus late fees of$1,653.01 (a total of$18,183.08) and attorneys' fees and
costs. See Exhibit B to Exhibit 1.
16. In its Complaint, Landlord requested judgment in its favor in the amount of
$18,183.08 plus ongoing rent and additional rent as it accrues, late fees, legal fees, interest and
costs, plus possession of the premises. See Exhibit 1.
17. Since Landlord filed the Complaint, Tenant's rental arrearage has grown to
$40,987.58. A true and correct copy of an accounts receivable ledger dated September 19, 2013
is attached hereto, made a part hereof, and marked Exhibit 4.
18. Pursuant to §23.02 of the Lease, Tenant is responsible for the payment of a late fee
of 10% of this unpaid balance, i.e., $4,098.76.
19. The amount due from Tenant as of September 27, 2013 is thus $45,086.34, plus
attorneys' fees and costs to bring suit for the collection of rent.
20. As Tenant's breach of Lease has been admitted and established, as set forth above,
Landlord also respectfully requests immediate possession of the premises.
3
•r
WHEREFORE, Plaintiff PR STONEHEDGE SQUARE, L.P., respectfully requests
judgment in its favor and against Defendant BI CHEN d/b/a Great Wall Buffet in the sum of
$45,086.34, together with ongoing rent and additional rent from September 28. 2013 as it
accrues, late fees, legal fees, interest and costs, and possession of the premises, as set forth in its
Complaint.
PETER A LESSER
LISA M. UTENBER
Attorneys or Plaintiff
October, 2013
4
VERIFICATION
LISA M. RUTENBERG, verifies she is the attorney for Plaintiff, that she is authorized to
and does make this verification on its behalf and that the statements made in the foregoing Motion
for Judgment on the Pleadings are true and correct to the best of her knowledge, information and
belief. The undersigned understands that the statements herein are made subject to the penalties of
18 Pa. C.S. §4904 relating to unsworn falsification to authorities.
ti
LISA I ENBER
October 2013
SIRLIN LESSER& BENSON, P.C.
Peter A. Lesser, Esquire (#59433)
plesser @sirlinlaw.com
Lisa M. Rutenberg, Esquire (#94738)
lrutenberg@sirlinlaw.com
123 South Broad Street, Suite 2100
Philadelphia, PA 19109
(215) 864-9700 Attorneys for Plaintiff
PR STONEHEDGE SQUARE, L.P., : COURT OF COMMON PLEAS
By Its Agent: Vastgood 7 Property Management Co. : CUMBERLAND COUNTY
vs. • No. 2013-2933
•
•
BI CHEN d/b/a Great Wall Buffet
CERTIFICATE OF SERVICE
I certify that a copy of Plaintiffs Motion for Judgment on the Pleadings was mailed to the
person listed below by First Class U.S. Mail,Postage Prepaid on October , 2013:
Daniel L. Puskar, Esquire
Turo Robinson
129 South Pitt Street
Carlisle, PA 17013
1 %11L.
LISA M. R TE g ERG
Attorney fo Plainti
•r
EXHIBIT 1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
PR Stonehedge Square LP -_; `'
Plaintiff : ,- r. "
•
VS
: i?. iv3 au,
• f r -r;, � �
Bi Chen d/b/a Great Wall Buffet
•
Defendant • c.�
-<
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 AN 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE,PA 17013
1-800-990-9108
717-249-3166
SIRLIN LESSER& BENSON,P.C.
123 South Broad Street,Suite 2100
Philadelphia,PA 19109
(215)864-9700
By: Peter A.Lesser,Esquire
Identification No. 59433 Attorneys for Plaintiff
PR STONEHEDGE SQUARE LP COURT OF COMMON PLEAS
By Its Agent: Vastgood 7 Property CUMBERLAND COUNTY
Portfolio Mgmt, LLC •
44 South Bayles Avenue •
Port Washington,NY 11050-3765 •
v.
BI CHEN d/b/a GREAT WALL BUFFET : NO.
Stonehedge Shopping Center
950 Walnut Bottom Road
Carlisle, PA 17013 •
COMPLAINT—CIVIL ACTION
BREACH OF CONTRACT—DAMAGES
Plaintiff,through its attorneys, Sirlin Lesser& Benson, P.C., sets forth the
following cause of action:
1. Plaintiff is PR STONEHEDGE SQUARE LP, a Pennsylvania limited
partnership. Its managing agent is Vastgood 7 Property Portfolio Mgmt, LLC located at 44
South Bayles Avenue, Port Washington, NY 11050. Plaintiff is the owner of commercial
property known as the Stonhedge Shopping Center in Carlise, Pennsylvania having acquired it
from the prior owner.
2. Defendant is BI CHEN, an adult individual d/b/a GREAT WALL BUFFET and
regularly conducts business at the Stonehedge Shopping Center, 950 Walnut Bottom Road,
Carlisle, PA 17013.
3. On or about June 6, 2001,the predecessor of Plaintiff and Defendant entered
into a Lease Agreement for the rental of approximately 4,400 square feet of commercial space
located at the Stonehedge Shopping Center, 950 Walnut Bottom Road, Carlisle, PA 17013 for a
term of ten(10)years which expired on March 31, 2012. A true and correct copy of Lease
Agreement is attached hereto as Exhibit "A" and made a part hereof.
4. Pursuant to the Lease, Defendant is responsible for the payment of monthly rent in
the amount of$5,342.74 plus common area maintenance charges and real estate taxes.
5. Defendant is in default of the terms of the Lease.
(a) Defendant has failed to pay rent and proper charges as of May 15, 2013 in
the amount of$16,530.07, as set forth on the Tenant Ledger attached as Exhibit "B" and made a
part hereof.
(b) Pursuant to Section 23.02 of the Lease, Defendant is also responsible for
the payment of a late fee of 10% on unpaid balances. Late fees are assessed in the amount of
$1,653.01.
6. Despite repeated demand; Defendant has refused and continues to refuse to pay
any or all of the remaining balance due to Plaintiff.
7. By letter to Defendant dated February 7, 2013, Plaintiff provided a notice of
default to Defendant. A true and correct copies of said letter is attached hereto as Exhibit"C"and
made a part hereof
8. Pursuant to Section 23.03(A) of the Lease, Defendant is also responsible for the
payment of legal fees and costs to bring suit for the collection of rent.
2
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the
amount of $18,183.08 plus ongoing rent and additional rent as it accrues, late fees, legal fees,
interest and costs.
COUNT II-EJECTMENT
9. Plaintiff incorporates by reference the allegations contained in Paragraphs 1
through 8 above, as though fully set forth herein at length.
10. Due to the default of Defendant as set forth above, Plaintiff is seeking possession
of the premises.
WHEREFORE, Plaintiff demands judgment in ejectment as authorized by the Lease for
possession of approximately 4,400 square feet of commercial space located at the Stonehedge
Shopping Center, 950 Walnut Bottom Road, Carlisle, PA 17013 as set forth in Count II of
Plaintiff's Complaint.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the
amount of $18,183.08 plus additional late fees, legal fees, interest, costs and possession of the
premises, as set forth in Counts I and II of Plaintiffs Complaint.
SIRLIN LESSER&BENSON,P.C.
6).r
BY:
PETER A. LESSER,ESQUIRE
Attorney for Plaintiff
3
•
VERIFICATION
LEO S. ULLMAN, being duly sworn according to law, deposes and says that he is
the representative of Plaintiff, PR STONHEDGE SQUARE LP, in this action, and hereby verifies
that the statements set forth in the foregoing Civil Action - Complaint are true and correct to the
best of his knowledge, information, and belief. I understand that the statements in the foregoing
Complaint -Civil Action are made subject to the penalties of 18 Pa. CSA Section 4904 relating to
unsworn falsification to authorities.
--)/1
LEO S.ULLMAN
DATED:
•
•
EXHIBIT "A"
STONEHEDGE SQUARE
SHOPPING CENTER
LEASE TO: BI CHEN
DATE: -3-1/h4 ( 2-001
r , 410 I
TABLE OF CONTENTS
SECTION PAGE
Section 1.01. Construction Work 1
Section 1.02. Construction Allowance 1
Section 1.03. Financing 1
Section 2.01. Commencement Date and Length of Term i
Section 2.02. Renewal Option 2
Section 2.03. Entry Prior to Substantial Completion and Prior to Term 2
Section 3.01. Quiet Enjoyment 2
Section 3.02. Mortgage Subordination and Seniority 2
Section 3.03. Acceptance of the Premises, Commencement Date, Attornment, and Estoppel
Certificates 2
Section 4.01. Minimum Rent 3
Section 4.02. Percentage Rent 4
Section 4.03. Additional Rent 4
Section 4.04. Payment 4
Section 4.05. Net Lease 4
Section 5.01. Security Deposit. 4
Section 6.01. Permitted Use 5
Section 6.02. Continuous Occupancy 5
Section 6.03. Permitted Name 5
Section 7.01. Common Areas. 6
Section 7.02. Maintenance of Common Areas 6
Section 7.03. Maintenance Contribution 7
Section 8.01. Restrictions on Assignment ' 7
Section 8.02. No Waiver 8
Section 9.01. Repairs by Landlord 8
Section 9.02. Repairs by Tenant 8
Section 9.03. Quality of Work and Warranties 8
•
Section 10.01. Payment for Utilities 8
Section 10.02. Change in Supply of Utilities 8
Section 10.03 Landlord Not Responsible for Interruption in Service 9
Section 11.01. Rules and Regulations 9
Section 11.02. Garbage Collection Service 9
Section 11.03. Alterations 9
Section 11.04. Signs 9
Section 11.05. Compliance with Laws and Insurance Requirements 10
Section 12.01. Mechanic's and Materialmen's Liens 10
Section 12.02. Other Liens 10
Section 13.01. Use of Roof and Walls by Landlord 10
•
Section 13.02. Pipes and Conduits 10
Section 14.01. Radius Restriction 10
Section 15.01. Damage to Landlord's Property 11
Section 15.02. Indemnity of Landlord. 11
Section 16.01. Real Estate Taxes 12.
Section 16.02. Licenses and Permits 12
Section 16.03. Taxes on Rentals and Other Sums Payable by Tenant 12
Section 16.04. Personal Property Taxes 12
Section 17.01. Trade Fixtures 13
Section 17.02. Negligence of Landlord and Acts of Other Tenants 13
Section 18.01. Landlord's Entry 14
Section 19.01. Fire and Other Casualty. 14.
Section 20.01. Effect of Total or Partial Condemnation 15
Section 20.02. Partial Condemnation Procedure 15
Section 20.03. Other Condemnation in the Center 16
Section 20.04. Condemnation Awards 16
Section 20.05. Condemnation After Discontinuance of Business 16
Section 20.06. Definitions 16
Section 21.01. Advertising Contribution 16
Section 22.01. Bankruptcy 16
Section 22.02. Bankruptcy 17
Section 23.01. Abatement of Tenant's Defaults 17
Section 23.02. Distraint and Default Rent 17
Section 23.03. Termination and/or Reletting for Defaults Liquidated Damages 17
Section 24.01. Remedies Cumulative 18
Section 24.02. Governing Law and Jurisdiction 19
Section 24.03. No Trial by Jury 19
Section 25.01. Recording 19
Section 25.02. Waiver of Redemption 19
Section 25.03. Waiver of Claim of Merger 19
Section 26.01. Notices. 19
Section 27.01. Successors and Assigns 20
Section 27.02. Tenant's Corporate Authority 20
Section 27.03. Entire Agreement 20
Section 27.04. Captions; Deletions; Definitions 20
Section 27.05. Site Plan 21
Section 27.06. Obligations Surviving Terminations 21
Section 27.07. Genders 21
Section 27.08. Modifications tor Financing Reasons 21
Section 27.09. Partial Invalidity 21
•
i •
Section 27.10. Brokers 21
Section 27.11. No Partnership 21
Section 27.12. Surrender of Premises 22
Section 27.13. No Option 22
Section 27.14. Relocation 22
Section 27.15. Tenant's Existing Lease Agreement. 22
EXHIBIT 1 SITE PLAN
EXHIBIT 2 INTENTIONALLY OMITTED
EXHIBIT 3 COMMON AREA COSTS
EXHIBIT 4 RULES AND REGULATIONS
EXHIBIT 5 TENANT'S CERTIFICATE
EXHIBIT 6 RENOVATION REQUIREMENTS FOR EXISTING PREMISES
. .
SHOPPING CENTER LEASE
•
THIS LEASE AGREEMENT, made on this 6 day of��F1' , 2001, by and between
STONEHEDGE CENTER, LLC, having an office at 170 W. Ridgely Road, Suite 300, Lutherville,
MD 21093 (hereinafter called "Landlord"), and BI CHEN (hereinafter called "Tenant") .
WITNESSETH: That in consideration of the rents, covenants, and agreements herein
contained, Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord, the
store premises (hereinafter called the "premises", "leased premises" or "demised p h
premises") in the Stonehedge Square Shopping Center (the "Center") in Carlisle, oil lkSI(1 Ig
Pennsylvania containing approximately 4,400 square feet, as.shown on the site plan of •
the Center (hereinafter called the "site plan") annexed hereto as Exhibit 1. As used
herein, the term "Center" refers to the land outlined on the site plan, and the
improvements now or hereafter erected thereon. This Lease is made upon the following
terms, covenants and conditions:
ARTICLE I
CONSTRUCTION OF THE PREMISES
Section 1.01. Construction Work.
Tenant hereby accepts the premises in "as-is" condition. Tenant shall, at its
expense, perform all work which is necessary to prepare the premises for the conduct of
business by Tenant in the manner contemplated by this Lease, including, but not limited
to, the work to be done by Tenant under Section B of Exhibit 2 ("Tenant Improvements") .
All work performed by Tenant shall be subject to all requirements and conditions set
forth in Sections B and C of Exhibit 2.
Landlord and Tenant hereby agree that in the event the premises are not completed
and possession delivered to Tenant on or before three (3) months from the date of this
Lease, then this.Lease shall be deemed null and void, have no further force or effect,
and any security deposit made herewith shall be promptly returned to the Tenant, and the
parties shall have no further obligation to each other.
Within ten (10) days after Tenant opens for business, Tenant shall execute and
deliver to Landlord a certificate substantially in the form attached hereto, marked
Exhibit 5 and made a part hereof, indicating thereon any exceptions thereto which may
exist at that time. Failure of the Tenant to execute and deliver such certificate shall
constitute an acceptance of the premises and acknowledgment by Tenant that the
statements included in Exhibit 5 are true and correct, without exception.
All improvements incorporated by Tenant'in the premises (other than trade
fixtures), including but not limited to floor covering, air-conditioning equipment and
duct work, shall be considered permanent improvements to the premises and shall be the
property of the Landlord.
Section 1.02. Construction Allowance. _.—
Within thirty (30) days following the date that Tenant opens for business in the
premises, Landlord shall pay Tenant, as a contribution towards the Tenant Improvements,
a construction allowance in an amount up to $11,750.00 (the "Construction Allowance") of
Tenant's documented costs for the Tenant Improvements, provided that Tenant submits
copies of paid invoices to Landlord for an amount equal to the Construction Allowance.
Landlord shall have the option of providing the Construction Allowance in the form of an
offset against minimum rent first falling due during the term of this Lease. Landlord
shall notify Tenant of its election regarding payment of the Construction Allowance
within ten (10) days following the date that Tenant has substantially completed the
Tenant Improvements.
Section 1.03. Financing.
INTENTIONALLY OMITTED.
ARTICLE II
TERM
Section 2.01. Commencement Date and Length of Term.
The term of this Lease shall commence on the date that Landlord delivers the
premises to Tenant and shall terminate ten (10) years after the first (1st) day of the
first full calendar month following the "Rent Commencement Date", at defined in Section
1 fJ
• •
•
4.01.
Section 2.02. Renewal Option.
Tenant shall have the option to renew the'term of this Lease for one additional
term of ten (10) years following the expiration of the original term, provided that this
Lease is in full force and effect and free of defaults by Tenant on the day that the
renewal option is exercised and on the day that the renewal term begins. The renewal
term shall be on the same terms, covenants and conditions as the original term except
(i) the length of the renewal term shall be as specified in this Section 2.02.; (ii)
Tenant shall have no further rights of renewal after the renewal term provided for
herein and (iii) the minimum rent shall be as set forth below. Wherever the word "term"
appears in this Lease it shall be deemed to mean the original term as extended by the
renewal term. Tenant's right of renewal provided for herein must be exercised by
delivery to Landlord from Tenant of an unequivocal written notice of Tenant's election
to renew at least 270 days prior to the expiration of the original term and upon the
timely delivery of such written notice, and without any further instrument, this Lease
shall be deemed to be renewed, subject to the conditions of this Section 2.02.
Lease Years Annual Payment Monthly Payment
11-12 $66,036.24 $5,503.02
13-14 $68,017.32 $5,668.11
15-16 $70,057.92 $5,838.16
17-18 $72,159.60 $6,013.30
19-20 $74,324.40 $6,193.70
Section 2.03. Entry Prior to Substantial Completion and Prior to Term.
INTENTIONALLY OMITTED.
ARTICLE III
QUIET ENJOYMENT, SUBORDINATION, ATTORNMENT AND ESTOPPEL CERTIFICATE
Section 3.01. Quiet Enjoyment.
So long as Tenant complies with the terms, covenants and conditions of this Lease
on Tenant's part, Tenant shall have the peaceful and quiet use of the premises, subject
to the terms, covenants and conditions of this Lease, without interference by Landlord
or anyone claiming rights in the premises by, through or under Landlord. In the event
of any breach by the Landlord of this covenant, provided the same would in law and/or
equity entitle Tenant to cancel this Lease, Tenant may, by written notice given to
Landlord within thirty (30) days after any such breach shall have occurred, cancel this
Lease, and upon any such cancellation all rights of either party against the other shall
cease and the term of this Lease shall expire as if the date of such cancellation were
the date originally fixed herein for the expiration of the term. Such right of
cancellation shall be Tenant's sole remedy for any breach by Landlord of the covenant
herein set forth; Tenant hereby waiving all other remedies for any such breach.
Section 3.02. Mortgage Subordination and Seniority.
The holder of any mortgage or deed of trust now existing or hereafter placed upon
the Center shall have the right to elect, at any time, whether this Lease shall be
subordinate to the operation and effect of such mortgage or deed of trust or superior
thereto, without the necessity in either case for execution by Tenant of any instrument
other than this Lease, and such election shall be binding upon Tenant. If, however, the
holder of the mortgage or deed of trust desires to confirm the effect of this provision,
then Tenant shall execute an attornment or subordination agreement in form satisfactory
to such holder upon request. Tenant hereby irrevocably appoints Landlord as attorney-
in-fact for Tenant with full power and authority to execute and deliver in the name of
Tenant any such subordination or attornment agreement; and acknowledges that the
foregoing power of attorney to Landlord is a power coupled with an interest, and
irrevocable. This Section 3.02 shall be inoperative as to the holder of any mortgage or
deed of trust with whom Tenant enters into an attornment agreement pursuant to Section
3.03(a) (iii) .
Section 3.03. Acceptance of the Premises, Commencement Date, Attornment, and Estoppel
Certificates.
(a) When the term commences (or earlier as to item (iii) below if requested by
Landlord's construction or permanent mortgagee), Tenant shall promptly; (i) enter into a
written and acknowledged agreement with Landlord stipulating the commencement date of
the Lease term; (ii) acknowledge in writing (and in form satisfactory to the holder of
the permanent mortgage on the premises) that Tenant has accepted the premises, except
that such acceptance may provide that it is not to constitute a waiver of Landlord's
2 8-
•
obligation to complete punch list items; and (iii) enter into a written agreement with
Landlord's permanent (and/or construction) mortgagee in form satisfactory to such
mortgagee, under which Tenant will agree to attorn to such mortgagee or to a purchaser
at foreclosure sale in the event of a mortgage foreclosure, provided that such mortgagee
also agrees to recognize Tenant's rights under this Lease, notwithstanding a mortgage
foreclosure, so long as Tenant performs and observes its obligations under this Lease,
and if required by such mortgagee, will agree to attorn to such mortgagee under all of
the terms of this Lease in the event such mortgagee becomes party to a ground lease
covering the Center or any part thereof which includes the premises, provided that such
mortgagee agrees to recognize this Lease.
(b) When requested by Landlord, Tenant shall promptly execute an agreement in
the form required by Landlord: (i) with the holders of the reversionary interest under
any ground lease and ground sub-lease to which Landlord's estate in the Center is
subject, for the purpose of agreeing to attorn to such holders in the event of
termination of either of said leases, provided that such holders execute such agreement
for the purpose of recognizing this Lease if construction of the premises is completed;
and (ii) with any purchaser or prospective purchaser of Landlord's interest in the
premises, for the purpose of attorning to such purchaser as its landlord, provided, that
such purchaser executes such agreement for the purpose of recognizing this Lease.
(c) Within three (3) days after a written request from time to time made by
Landlord, Tenant shall deliver to Landlord a signed and acknowledged statement in
writing setting forth: (i) that this Lease is unmodified, in full force and effect, free
of existing defaults of Landlord and free of defenses against enforceability (or if
there have been modifications or defaults, or if Tenant claims defenses against the
enforceability hereof, then stating the modifications, defaults and/or defenses), (ii)
the dates to which rent and additional rent have been paid, and the amount of any
advance rentals paid, (iii) the commencement and expiration dates of the original term,
(iv) whether Tenant has given written notice exercising its rights, if any, to renew
this Lease, and if so, the renewal terms so opted, (v) that Tenant has no outstanding
claims against Landlord (or if there are any claims, then stating the nature and amount
of such claims), and (vi) the status of any other obligation of either party under or
with respect to this Lease, it being intended that any such statement may be relied upon
by any purchaser or mortgagee of Landlord's interest in the premises, or any prospective
purchaser or mortgagee.
(d) Time is of the essence of all Tenant's obligations under this Section 3.03
and Tenant acknowledges that any delay or refusal on its part in signing and delivering
any instruments mentioned in this Section 3.03 may subject Landlord to substantial costs
and damages.
ARTICLE IV
RENT
Section 4.01. Minimum Rent.
Commencing on the date that is two hundred and seventy (270) days following the 3/74,z.
date that the premises are delivered to Tenant (the "Rent Commencement Date"), Tenant
shall pay Landlord a minimum rent as follows:
Lease Years Annual Payment Monthly Payment
1-2 $58,212.00 $4,851.00
3-4 $59,305.92 $4,942.16
5-6 $60,432.60 $5,036.05
7-8 $62,245.56 $5,187.13
9-10 $64,112.88 $5,342.74
If the Rent Commencement Date falls on a day other than the first day of a calendar
month, the minimum rent for the period from the Rent Commencement Date to the first
(1st) day of the first full calendar month following the Rent Commencement Date shall be
prorated by dividing the monthly rate by a fraction the numerator of which is the number
of days remaining in such month and the denominator of which is the total number of days
in such month) and shall be payable on the fifth (5th) day after the Rent Commencement
Date.
Lease Year.
The first lease year of this Lease shall commence on the Lease commencement date and
shall end at the close of the twelfth full calendar month following the Rent
Commencement Date; thereafter, each lease year shall consist of periods of twelve
calendar months.
Section 4.02. Percentage Rent.
3 g (
411 411
✓i/NTENTIONALLY OMITTED.
Sect ion 4.03. Additional Rent.
Whenever under the terms of this Lease any sum of money is required to be paid by
Tenant in addition to the minimum rental herein reserved, whether or not such sum is
herein designated *as "additional rent" or provision is made for the collection of said
sum as additional rent, said sum shall, nevertheless, be deemed to be additional rent,
and shall be collectible as rent. All minimum rent required to be paid hereunder, and
all other payments fixed herein as to amount and time of payment shall be paid without
prior demand; and all minimum rent and additional rent shall be paid without any setoff,
abatement, or deduction except as expressly set forth in this Lease. Any payment by
Tenant of a lesser amount of minimum or additional rental than is then due shall be
applied to such category of arrearage as Landlord may designate irrespective of any
contrary designation by Tenant and to the oldest, most recent or other portion of the
sum due as Landlord may determine; and Landlord's acceptance of any such partial payment
shall not be deemed an accord and satisfaction, and shall be without prejudice to
Landlord's right to pursue any other remedies. If Landlord receives any checks from
Tenant that are returned for any reason whatsoever, then Landlord shall have the right
to require Tenant to make payments of rent or additional.rent by certified checks or
money orders only. In addition, Tenant shall pay a returned check fee in the amount of
One Hundred Dollars ($100.00) for each check so returned which shall be deemed
additional rent.
Section 4.04. Payment.
All rent payable and all statements deliverable by Tenant to Landlord under this
Lease shall be paid and delivered to Landlord at at P.O. Box 5678, Lutherville, MD
21094-5678, or by overnight delivery to 170 W. Ridgely Road, Suite 300, Lutherville, MD
21093 or at such other address as Landlord may hereafter designate in writing to Tenant.
Section 4.05. Net Lease.
It is mutually intended and understood that the minimum rent is a "net" rent to
Landlord, and that all taxes (except Landlord's personal income taxes), maintenance
costs and other charges, assessments and expenses attributable to the premises shall be
paid by Tenant in addition to said rent, as hereinafter provided.
ARTICLE V
SECURITY DEPOSIT
Section 5.01. Security Deposit.
Landlord hereby acknowledges receipt from Tenant of the sum of Four Thousand Eight
./Hundred Fifty One Dollars ($4,851.00) to be held by Landlord as security for the payment
of rent and the performance of Tenant's other obligations under this Lease. The deposit
shall be returned to Tenant without interest at the termination of this Lease if all of
Tenant's obligations hereunder re performed to the date of termination. If Tenant
defaults in the payment of rent or in the performance or observance of any other
obligation on its part under this Lease, Landlord may apply the deposit to payment of
the rent in default or other money arrearage and/or to the damages and costs incurred by
Landlord as a result of any default, and/or to costs incurred by Landlord in rectifying
any default, and/or to the prepayment of minimum rent for any subsequent period of the
term and/or to any amount to which Landlord may be entitled under Article XXIII of this
Lease; and Tenant shall promptly thereafter restore the security deposit to the original
amount above specified (except to the extent said sum is applied by Landlord to
prepayment of minimum rent) . The right of Landlord to apply the security deposit as
above specified shall not be construed as a limitation upon Landlord's right to invoke
any other remedy available under this Lease or at law or equity for breach of this Lease
or to collect the full amount of damages owing by Tenant on account of such breach. If,
by reason of Tenant's default under this Lease, Landlord terminates this Lease either
before or after the commencement of the term or reenters the premises, Landlord may
retain the security deposit as liquidated damages (applying it against the damages which
it suffers but without waiving its rights to recovery of additional damages to which it
may be entitled) or apply it to the monthly installments of minimum rent hereunder in
inverse order of accrual.
ARTICLE VI
PERMITTED USE AND CONTINUED OCCUPANCY
Section 6.01. Permitted Use.
(a) Permitted Use. The premises shall be used and occupied during the term
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hereof for the following purposes, and none other: The operation of a Chinese buffet
style restaurant serving principally Chinese and incidentally American cuisine and non-
alcoholic beverages primarily for on premises consumption.
(b) Special Restrictions. Without any intention to diminish the efficacy of
Section 6.01(a), but in order to specify particular uses and practices which, if engaged
in by Tenant, would be in violation of other leases in, or recorded agreements
pertaining to, the Center or of exclusive use privileges which Landlord has, will, or
may desire to grant, or which constitute business or practices which Landlord may desire
to prohibit or control, Tenant shall not, at any time during the term: (1) maintain or
permit any vending or amusement game machines on the premises; or (2) sell any
additional merchandise or conduct any business or perform any additional service on the
premises which would violate or be in conflict with any restrictive use covenant or
exclusive use privilege at any time binding upon Landlord, but this item (2) shall not
be deemed to preclude the use allowed under Section 6.01(a) hereof. Tenant shall bear
all risks of any violation of any provision of this Section 6.01(b) and shall defend,
indemnify and save Landlord harmless from all damages and expenses (including counsel
fees) resulting from any such violation.
Section 6.02. Continuous Occupancy.
(a) At the commencement of the term of this Lease, Tenant shall occupy the
premises and promptly open for business, at which time the premises shall be fully
fixtured, fully stocked and fully staffed. Tenant acknowledges that it has been .
informed that its obligation to open for business promptly at the commencement of the
term has been and will be relied upon by Landlord in dealing with other tenants in the
Center, and the failure of Tenant to open for business as above specified may cause
substantial damages to Landlord. Tenant shall defend, indemnify and save Landlord
harmless from any damages which may be claimed against Landlord and shall indemnify
Landlord for any losses suffered because of Tenant's failure to comply with its
obligations under the first sentence of this Section 6.02(a) .
(b) Throughout the term, Tenant shall continuously conduct in the premises, with
a full stock of merchandise and full staff of personnel, the business permitted under
Section 6.01(a) on all business days and during such hours as are kept by any department
store in the Center or by a majority of the tenants in the Center (excluding the Tenant
hereunder), but, in any event, Tenant shall be open for business from 10:00 a.m. to 9:00
p.m., Monday through Sunday. Tenant acknowledges that its obligation to continuously
and actively conduct business in the premises in the manner prescribed in this Section
6.02(b) is for the purpose of enhancing the business activity and public patronage of
all stores in the Center in order to produce for Landlord the maximum possible
percentage rents from all applicable stores in the Center and to enhance the leasability
of floor space in the Center; and Tenant acknowledges that failure on its part to comply
with the provisions of this Section 6.02(b) would cause Landlord substantial damages
which might be difficult or insusceptible of exact proof. Accordingly, the parties have
agreed that if Tenant fails to comply with the provisions of this Section 6.02(b), then
Landlord shall not be required to prove its actual damages for breach of this Section
6.02(b) but, in lieu thereof, Tenant shall pay Landlord, as liquidated damages, an
additional monthly rent equal to the monthly minimum rent payable under Section 4.01
hereof, which liquidated damage payments shall continue from the date of breach until
such breach is cured or until the end of the then current term of this Lease, whichever
is first. The liquidated damages shall be paid monthly, concurrently with the monthly
payments of minimum rent reserved under the Lease. Nothing in this Section 6.02(b)
shall be construed as a limitation upon Landlord's right to obtain specific performance
of Tenant's obligations to continuously conduct business in the manner herein specified
or to recover any other provable monetary damages. A breach by Tenant of its
obligations under subsection (a) of this Section 6.02 shall also constitute a breach of
this subsection (b) and entitle Landlord not only to its claims under subsection (a) but
also to liquidated damages under this subsection (b) for so long as the breach of this
subsection continues.
Section 6.03. Permitted Name.
Tenant shall conduct business on the premises in the name of Great Wall and under
no other name or trade name unless and until the use of some other name is approved in
writing by Landlord.
ARTICLE VII
COMMON AREAS
Section 7.01. Common Areas.
(a) Tenant's Right to Use Common Areas. During the term of this Lease,
customers of Tenant shall be entitled to the non-exclusive use, free of charge, but in
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common with others, of (1) the automobile parking areas (herein called "parking areas")
from time to time made available by Landlord for the common parking of all Center
tenants and their patrons; (2) the entrances and exits thereto and the driveways •
thereon, for vehicular and pedestrian ingress and egress only (which parking areas,
entrances, exits and driveways are sometimes herein collectively called "vehicle
areas"); and (3) the pedestrian walkways in the Center, for pedestrian ingress and
egress only. All of the facilities described in (1), (2) and (3) are herein sometimes
collectively called "common areas." Tenant and its contractors, agents (other than
premises employees), licensees, invitees and suppliers may use any of the vehicle areas
for ingress and egress, and may use the parking areas for parking of non-commercial
vehicles and may load and unload commercial vehicles in the parking area at the service
door to the premises and shall thereafter promptly remove such vehicles;.and may use any
delivery driveway designated by the Landlord for access to the premises for deliveries,
pickups and other services to the premises, but no other driveways. All such uses shall
be subject to such rules and regulations as may be prescribed from time to time by
Landlord; and Landlord shall have exclusive management and control over the common
areas.
(b) Employee Parking. Tenant and its premises employees shall have the right,
in common with others, to park vehicles in the areas that Landlord designates as
employee parking areas and in no other areas, and may use the other vehicle areas for
ingress and egress only. Tenant shall promptly furnish to Landlord, on request, license
numbers of vehicles used by Tenant and its employees. If any employees of Tenant parks
a vehicle in an area other than that designated for parking of employees, Tenant shall
pay Landlord Twenty Dollars ($20.00) per day or partial day for each vehicle so parked
and Landlord shall have the right to remove such vehicle to the designated employee
parking area at Tenant's expense, if Landlord shall have given the manager of the
premises oral or written notice of such employee's current or past parking violations at
least two (2) days prior to removal. Tenant shall defend, indemnify and save Landlord
harmless from any claims for damages which may be made against Landlord by any employee
of Tenant on account of or arising out of removal of a vehicle belonging to an employee
of Tenant.
(c) Control of Parking Areas. In order to preserve the parking areas for the
use of patrons of the Center, Landlord may exact parking charges (by meters or
otherwise) provided that provision is made for free parking ticket validation for
Tenant's customers, may close temporarily all or any portion of the common areas as may
be required for proper maintenance and/or repair or to avoid dedication to public use,
and take such other action as it deems advisable in its business judgment in order to
secure or improve the convenience and use thereof by the tenants of the Center and their
customers. Landlord may from time to time change the location, layout and arrangement
of the parking areas, driveways and walkways and erect buildings, or other temporary or
permanent structures or improvements thereon, provided that Landlord maintains
sufficient automobile parking facilities for the Center to comply with legal
requirements, and does not deprive Tenant of access to the premises.
(d) Picketing. If, at any time after the execution of this Lease, the premises
or the Center shall be picketed by any person or organization alleging a grievance
against, or dispute with, Tenant, then Landlord may, at its option require Tenant
forthwith to close its business on the premises pending the resolution of any such
grievance or dispute, but Tenant shall use its best efforts in good faith to cause the
cessation of all such picketing. Tenant shall not, without Landlord's prior written
consent, reopen the premises for business until Tenant furnishes to Landlord
satisfactory proof that there will be no further picketing of the premises or the Center
should Tenant reopen for business in the premises. The closing of Tenant's business on
the premises pursuant to this subsection (d) shall not be deemed a constructive eviction
of Tenant.
(e) No Public Use. Nothing herein contained shall be deemed to be a dedication
of the common areas to public use, it being Landlord's intention that the common areas
may be used only by Tenant and the other permitted users mentioned in this Section 7.01,
and then only for the particular facilities and limited purposes specified as to each
user.
Section 7.02. Maintenance of Common Areas.
Landlord shall, subject to Section 7.03, provide illumination of the common areas
for the tenants of the Center during such after-dark hours as tenants occupying more
than fifty percent (50%) of the rented retail floor space in the Center are open for
business, and shall keep the common areas in reasonable repair; and Landlord shall
substantially clear ice and snow from the vehicle areas to permit substantial use
thereof for the intended purpose, with reasonable diligence under the circumstances.
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Section 7.03. Maintenance Contribution.
10.7:01
Commencing on the earlier to occur of (i) 120 days following the date the premises
are delivered to Tenant or(ii) the date that Tenant opens for business in the premises_)aho6)
(the "Extras Commencement Date"), as a contribution to the Landlord's costs of operating
and maintaining the common areas and the facilities thereon located or appurtenant
thereto, Tenant shall pay Landlord a pro rata share of all costs and expenses of
maintaining and operating the common areas of the Center (including all areas,
structures and facilities within the Center not made available for leasing and all
areas, structures and facilities adjacent to the Center used in connection with the
Center or for which Landlord has responsibility for maintenance or maintenance cost
under governing law) proportionately as the square footage of the premises bears to the
square footage of all leasable floor space in the Center (exclusive of floor space
leased to tenants who maintain portions of the Center vehicle areas and exclusive of
floor area leased by a tenant Landlord considers to be a "major", "anchor" or "national
tenant" who is nos required to fully share in payment of common area expenses ("Anchor
Tenant"). To the extent any Anchor Tenant or outparcel building does contribute toward
common area expenses, that contribution shall be applied to reduce the total amount of
common area expenses passed through to Tenant. Operating and maintenance costs shall
include, but not be limited to, all of the costs set forth on Exhibit 3.hereto, and
shall be determined by Landlord and billed no less often than annually for such fiscal
year as Landlord may adopt for such purpose, except that Landlord may temporarily adopt
a longer or shorter accounting period for a specified period following the opening of
the Center. Payments shall be made in monthly installments starting at the Extras
Commencement Date, based on estimated costs projected by Landlord from time to time,
except that until Tenant is otherwise advised, Tenant's initial monthly installments
shall be at the annual rate of One Dollar and Twenty Three Cents ($1.23) per square foot
of floor space in the premises. The monthly installments paid by Tenant shall be
adjusted within thirty (30) days after Landlord determines its actual costs for any
fiscal period, to reflect Tenant's actual share of such costs, at which time Tenant
shall pay any balance owing on its annual contribution, or shall be credited any excess,
as the case may be; except that the monthly payments made at the above specified rate
shall also be adjusted (prospectively and retroactively) to conform to any cost
projection adopted by Landlord before the-initial accounting period ends.
ARTICLE VIII
ASSIGNMENT AND SUBLETTING
Section 8.01. Restrictions on Assignment.
Tenant shall not assign this Lease or sublease all or any part of the premises,
nor permit other persons to occupy or conduct business in the premises or any part
thereof, nor grant any license, concession, management contract or franchise for all or
any part of the premises. Any assignment by operation of law, attachment or assignment
for the benefit of creditors shall, at Landlord's option, be inoperative. If Tenant is
a corporation, any transfer of any of Tenant's issued and outstanding capital stock or
any issuance of additional capital stock, as a result of which the majority of the
issued and outstanding capital stock of Tenant is held by a corporation, firm, or person
or persons who do not hold a majority of the issued and outstanding capital stock of
Tenant on the date hereof, shall be deemed a prohibited assignment under this Section
8.01. If Tenant is a partnership, any transfer of any interest in the partnership or
any other change in the composition of the partnership which results in a.change in the
management of Tenant from the person or persons managing the partnership on the date
hereof, shall be deemed a prohibited assignment under this Section 8.01. If Landlord
consents to any transfer of this Lease, Tenant shall pay to Landlord a transfer fee of
Five Hundred Dollars ($500.00) prior to the effective date of the transfer in order to
reimburse Landlord for all of its internal costs and expenses incurred with respect to
the transfer.
Notwithstanding anything to the contrary contained in this Section 8.01, Tenant
shall have the right to assign this Lease for any of the then remaining portion of the
unexpired Term, with Landlord's consent, which consent shall not be unreasonably
withheld or delayed, to a corporate entity or individual who has a good business
reputation, provided (i) the net worth [determined in accordance with generally accepted
accounting principles] of the assignee shall not be less than the net worth of Tenant at
the time of execution of this Lease and at the time of such assignment; (ii) such
assignee shall continue to operate the business conducted in the premises in the same
manner as Tenant and pursuant to all of the provisions of this Lease; (iii) such
assignee shall assume in writing all of Tenant's obligations hereunder and Tenant shall
provide Landlord with a copy of such assignment; and (iv) the Tenant to which the
premises were initially leased shall continue to remain liable for the performance of
all terms including, but not limited to, payment of Rent and other sums due under this
Lease.
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Section 8.02. No Waiver.
If Landlord at any time consents in writing to any assignment or sublease as
defined in and prohibited by Section 8.01, in addition to any other consideration that
may pass between the parties in connection therewith, Tenant and any such assignee or
sublessee shall be deemed to have covenanted not to make any further assignment or
sublease contrary to the provisions of Section 8.01, and such covenant shall be deemed
to have been made as of the date of such consent and shall take effect prospectively
from the date thereof.
ARTICLE IX
REPAIRS
Section 9.01. Repairs by Landlord.
Subject to delays which are caused by labor disputes, inability to obtain
materials or labor on reasonable terms, delays excusable under the AIA General
Conditions from time to time in force, or any cause whatsoever not due to the fault of
Landlord (including Tenant's failure to furnish information as hereinafter provided),
Landlord shall make all necessary repairs to the roof and necessary structural repairs
to the exterior walls of the premises, provided that Tenant gives Landlord written
notice of the necessity of such repairs and that the need for such repairs is not due to
any act or omission of Tenant, its agents, servants or contractors. Tenant shall pay to
Landlord, as additional rent, all costs and expenses incurred by Landlord in performing
the foregoing repairs caused by Tenant within ten (10) days after receipt of a bill
therefor from Landlord.
Section 9.02. Repairs by Tenant.
Saving and excepting the repairs for which Landlord is responsible under Sections
9.01 and 19.01, Tenant shall keep the premises, and all systems, equipment and
facilities in the premises in good condition and repair, and shall make all replacements
required to maintain said status of repair. Tenant shall also keep in good condition
the common areas within forty (40) feet of the wall in which the service door for the
premises is located, and Tenant shall keep said area clean.
Section 9.03. Quality of Work and warranties.
All repairs and replacements made by the parties shall be equal in quality to the
original construction. Landlord shall assign to Tenant the benefits of all assignable
warranties received from contractors in connection with the original construction of the
premises.
ARTICLE X
UTILITIES
Section 10.01. Payment for Utilities.
Commencing on the date that the premises are delivered to Tenant, Tenant shall
pay, when due or when billed by Landlord, all utility charges (as defined below) and all
charges for water and sewer service furnished to the premises based on the usage shown
by a utility company meter for the premises or by a submeter for the premises installed
by Landlord, and a proportionate share of water meter and fire service charges for the
Center. Tenant shall promptly have all utility services billed to it in its name. If
neither meter is furnished. Tenant shall pay Landlord a proportionate share of the
Center's water and sewer bills, based on the ratio of the premises floor area to all
leased floor area in the Center. Utility charges includes, but is not limited to, all
consumption charges for all utility services furnished to the premises, including, but
without limitation, heat, air conditioning, gas (if available), electricity, and
telephone.
Section 10.02. Change in Supply of Utilities.
If permitted by law, Landlord shall have the right at any time and from time to
time during the Lease term to either contract for service from a different company or
companies providing electricity service (each such company shall hereinafter be referred
to as an "Alternate Service Provider") or continue to contract for service from the
current electric service provider (the "Electric Service Provider") .
Tenant shall cooperate with Landlord, the Electric Service Provider, and any
Alternate Service Provider at all times and, as reasonably necessary, shall allow
Landlord, Electric Service Provider, and any Alternate Service Provider reasonable
access to the Center's electric lines, feeders, risers, wiring, and any other machinery
within the premises.
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Section 10.03 Landlord Not Responsible for Interruption in Service. '
Landlord shall not be liable to Tenant for damages because of any interruptions,
disruption, or defect in the supply or character of the utility services, and Tenant
shall not be entitled to claim a constructive eviction due to such interruption, defect
or character; but Landlord shall proceed with reasonable diligence to restore such
service to the extent that it is within Landlord's control to do so.
ARTICLE XI
TENANT'S OPERATIONS, ALTERATIONS, SIGNS AND LAW COMPLIANCE
Section 11.01. Rules and Regulations.
Tenant shall at all times comply with the rules and regulations set forth on
Exhibit 4 hereto, and with any additions thereto and modifications thereof adopted from
time to time by Landlord, and each such rule or regulation shall be deemed as a covenant
of this Lease to be performed and observed by Tenant.
Section 11.02. Garbage Collection Service.
Landlord may, from time to time, elect to provide garbage and trash collection
service for the premises. If Landlord so elects, Tenant shall cooperate with Landlord
in the scheduling of such collection service and Tenant shall not use any other garbage
or trash collection service at the premises. The cost of any such service shall be
included in the Landlord's common area costs or shall be billed monthly to Tenant, based
on the ratio of the floor area of the premises to the aggregate floor area of all
tenants to whom Landlord furnishes such service. Landlord may at any time terminate
such collection service upon the giving of ten (10) days' advance notice to Tenant.
Section 11.03. Alterations.
Tenant shall not make any alterations, additions or improvements to the store
front of the premises or any alterations, additions or improvements affecting structural
or support elements of or in the building of which the premises are a part, or affecting
any utility system servicing the premises or other parts of the Center. Any
alterations, additions or improvements by Tenant which are permitted hereunder or
hereafter approved by Landlord shall immediately become the property of Landlord and
remain upon the premises at the end of the term unless Landlord notifies Tenant to
restore the premises to its original condition, in which event Tenant shall comply with
such requirement prior to the expiration of the term. Tenant shall not provide a patron
entrance to the premises in addition to the entrance existing at the beginning of the
term. Tenant shall not cut or drill into, or secure any fixtures, apparatus or
equipment of any kind to, any part of the premises without Landlord's prior written'
consent; and if Tenant shall in any way cut through or pierce the roof or exterior walls
of the premises, the Landlord's repair obligations respecting the roof or exterior walls
(as the case may be) under Section 9.01 hereof shall terminate. Before undertaking any
alterations permitted hereunder or consented to by Landlord hereunder, Tenant shall
obtain and furnish to Landlord an endorsement to the public liability insurance policy
required to be carried by Tenant under Section 15.02 hereof to cover liabilities
incurred in connection with any work undertaken by Tenant.
Section 11.04. Signs.
Tenant shall not, without Landlord's prior written consent, place, suffer to be
placed, or maintain any sign, billboard, marquee, awning, placard, lettering,
advertising matter, or other thing of any kind, whether permanent or temporary, on the
exterior of the premises, or in or on any glass window, window showcase, or door of the
premises. In the event of any violation of this Section 11.04 by Tenant, Landlord may
take such action as it sees fit to abate such violation, and Tenant shall pay to
Landlord all expenses incurred by Landlord in connection therewith.
Section 11.05. Compliance with Laws and Insurance Requirements.
Tenant shall promptly comply with all laws, rules, regulations, requirements and
recommendations of governmental bodies and public authorities and of the local board of
fire underwriters rating bureau or other fire insurance rating organization for the area
in which the premises are situated and of Landlord's insurers, pertaining to the
premises or the use and occupancy thereof, or to fire preventive, warning and
extinguishing apparatus. Tenant shall not do or suffer to be done, or keep or suffer to
be kept anything in or about the premises which will contravene any of Landlord's
insurance policies on the Center or any part thereof (including, without limitation,
fire, casualty, liability, boiler and rent insurance) or which will prevent Landlord
from procuring such policies in companies reasonably acceptable to Landlord, or which
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will impair Landlord's rights to collect on any insurance policy; and if anything done,
omitted to be done or suffered to be done by Tenant (including, without limitation,
failure to occupy the premises) or kept, or suffered by Tenant to be kept in or about
• the premises shall cause the rate of any such insurance on the premises or on any other
part of the Center to be increased above the rate applicable to the least hazardous type
of retail occupancy legally permitted in the Center or shall cause any policy of
Landlord's to be canceled or result in the.disturbance of an insurance recovery, then
Tenant will pay the increase in premium promptly upon Landlord's demand, or indemnify
Landlord for any loss to the extent that insurance proceeds are insufficient to fully
cover such loss, as the case may be.
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ARTICLE XII
MECHANIC'S LIENS AND OTHER LIENS
Section 12.01. Mechanic's and Materialmen's Liens.
If any mechanic's or other lien is filed against any part of the Center by reason
of any labor, material or service furnished or alleged to have been furnished to Tenant
or for any change, alteration, addition or repair to the premises made by Tenant, Tenant
shall cause such lien to be released of record by payment, bond or otherwise as allowed
by law, at Tenant's expense, within five (5) days after the filing thereof; and Tenant
shall, at its expenses, defend any proceeding for the enforcement of any such lien,
discharge any judgment thereon and save Landlord harmless from all losses and expenses
resulting therefrom, including counsel fees and other expenses incurred by Landlord, if
it elects to defend or participate in the defense of such proceeding.
Section 12.02. Other Liens.
Tenant shall not permit the premises to be subjected to any statutory lien by
reason of any act or omission on the part of Tenant or any of its approved
concessionaires, licensees or subtenants or their respective agents, servants, employees
or contractors; and in the event that any such lien attaches to the premises or the
Center, Tenant shall discharge the same promptly by payment, bond or otherwise as
allowed by law, at its own expense, within five (5) days after the filing thereof.
ARTICLE XIII
ROOF, WALLS AND INTERIOR
Section 13.01. Use of Roof and Walls by Landlord.
Landlord reserves the exclusive rights to the use of all or any part of the roof
of the premises, air space above, and the rear and side walls of the premises, for
support or other purposes.
Section 13.02. Pipes and Conduits.
Landlord reserves the right to install and maintain pipes, conduits, wires and
ducts in and through the premises to serve any other part of the Center, so long as any
visible installation does not unreasonably interfere with the use or appearance of the
premises.
ARTICLE XIV
RADIUS RESTRICTION
Section 14.01. Radius Restriction.
Tenant covenants for itself, and for any subsidiary corporation (if Tenant is a
corporation), and for every partner in Tenant (if Tenant is a partnership) that so long
as this Lease is in force and effect, or until the fixed termination date under Section
2.01 in case of premature termination of this Lease by Landlord due to default by the
Tenant, neither Tenant nor any such subsidiary or partner shall, within three (3) miles
of any boundary of the Center, directly or indirectly own, lease (as landlord or
tenant) , operate, or be financially interested in a business of the type permitted to be
conducted on the premises under Section 6.01(a) .
ARTICLE XV
PUBLIC LIABILITY AND INSURANCE
Section 15.01. Damage to Landlord's Property.
Tenant shall indemnify Landlord for any damage to any property of Landlord in the
Center caused by or arising out of or in connection with any act or omission of Tenant,
its employees, servants, agents, or contractors, or Tenant's occupancy or use of the
premises or common areas, or any thing, matter or condition of, on or pertaining to the
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premises, or any breach by Tenant of any term, covenant or condition of this Lease to be
performed or observed by Tenant.
Section 15.02. Indemnity of Landlord.
(a) Indemnity of Landlord. Tenant shall defend, indemnify, and save Landlord
harmless from and against any and all claims, actions, demands, damages, liability and
expenses (including counsel fees) for injury to the property of others and injury or
death of persons, which is caused by or arises out of or in connection with Tenant's use
or occupancy of the premises or the common areas, or any thing, matter or condition of,
on or pertaining to the premises, or any act or omission of Tenant, its agents,
employees, servants or contractors, or out of a breach by Tenant of any term, covenant
or condition of this Lease to be performed or observed by Tenant.
(b) Liability Insurance. Throughout the term Tenant shall, at its expense,
maintain commercial general public liability insurance, automobile liability insurance,
boiler liability insurance (if applicable to the premises), and sprinkler damage
liability insurance, covering personal injury and property damage occurring on the
premises, which shall include Tenant as named insured and Landlord as additional
insured, and shall include contractual indemnity coverage for Tenant's liability under
Section 3.5.02(a) . Such policy shall have minimum liability limits of One Million
Dollars ($1,000,000.00) for bodily injury or death of one person, Two Million Dollars
$2,000,000.00) for injury or death of more than one person in any one accident, and One
Million Dollars .41,000,000.00) for property damage for each accident; and all such
policies shall be written on an occurrence basis. The minimum limitations above set
forth shall, at Landlord's option, be increased on every fifth anniversary of the
commencement date of the term by Twenty percent (20ks) of the limitations then applicable
under the provisions of this Section 15.02(b) .
(c) Plate Glass Insurance. Throughout the term, Tenant shall, at its expense,
maintain plate glass insurance for the full replacement value of all of the plate glass
in the premises.
(d) Throughout the term Tenant shall, at its expense, maintain rental value
and/or business interruption insurance in amounts not less than the rent and additional
rent required to be paid hereunder. To the extent possible, Tenant hereby assigns to
Landlord that portion of the insurance proceeds payable thereunder equal to the rent and
additional rent, and Tenant shall notify the insurance company of this assignment and
request that any such proceeds be paid directly to Landlord.
(e) Carrier Rating. All insurance required under this Lease shall be written
with insurance companies licensed to do business in the State in which the premises are
located and rated by Best's Manual A+ as to general policy holders rating, and Class XII
or higher as to financial rating, and shall contain an endorsement requiring thirty (30)
days prior written notice to Landlord of any modification, cancellation or surrender.
(f) Delivery of Policies. Prior to the beginning of the term, Tenant shall
deliver to Landlord the original insurance policies required to be carried under this
Article and Articles XVII and XIX bearing a notation by the insurer or its agent that
the premium is paid; and renewal certificates of each such policy shall be delivered to
Landlord at least thirty (30) days prior to the expiration of any policy term bearing a
notation that the renewal premium has been paid. The insurance required to be carried
by Tenant under this Section 15.02 may be carried under a policy commonly known as a
"blanket policy", but Tenant shall furnish to Landlord a copy of such policy, any
endorsements thereto required by this Article, and evidence of Landlord's coverage under
such policy.
ARTICLE XVI
TAXES
Section 16.01. Real Estate Taxes.
Commencing on the Extras Commencement Date, in addition to all rentals herein
reserved, Tenant shall pay to Landlord annual and/or semi-annual real estate taxes and
assessments levied upon the premises and the underlying realty, together with a pro rata
share of such taxes and assessments levied upon the common areas of the Center.
Tenant's pro rata share of the real estate taxes and assessments on the common areas
shall be determined by the ratio that the gross leased floor area of the premises (as
hereinafter defined) bears to the total gross leasable floor area of buildings in the
Center. The amounts payable hereunder shall be payable within ten (10) days after
receipt of a semi-annual or annual statement to be sent by Landlord to Tenant setting
forth the amount of such tax based upon the actual tax bill received by Landlord.
Notwithstanding the foregoing, Landlord, at its option, shall have the right to estimate
the amount of taxes next due and to collect and impound from Tenant on a monthly, �^
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quarterly, or such other basis as Landlord, in its discretion, may determine the amount
of Tenant's estimated tax obligation. Within ninety (90) days following receipt of the
actual tax bill, Landlord shall provide to Tenant a reconciliation of Tenant's impound
account. In the event the premises are not separately assessed, the applicable taxes
and assessments shall be determined by t15 ratio that the gross leased floor area of the
premises bears to the total gross leasable floor area of the buildings in the Center
which are covered by the tax bill which includes premises. The taxes and assessments
for the year in which this Lease commences or ends shall be apportioned and adjusted.
With respect to any assessment which may be levied against or upon the premises and
which, under the laws then in force, may be evidenced by improvements or other bonds
payable in annual installments, only the annual payments on said assessment shall be
included in computing Tenant's obligation for real estate taxes and assessments. The
term "real estate taxes and assessments" as used herein shall be deemed to mean all
taxes imposed upon the real property and permanent improvements constituting the Center,
including the premises and common areas and all assessments levied.against said Center
and/or any portion thereof together with the reasonable cost (including fees of
attorneys, consultants and appraisers) of any negotiation, contest or appeal pursued by
Landlord in an effort to reduce any such tax, assessment or charge, but shall not
include personal income taxes, personal property taxes, inheritance taxes or franchise
taxes levied against the Landlord, but not directly against said property, even though
such taxes may or shall become a lien against said property.
Notwithstanding anything to the contrary contained herein, upon the Extras
Commencement Date, Tenant shall pay to Landlord its proportionate share of the real
estate taxes and assessments for the balance of the current tax year. In addition,
Tenant shall pay any deficit due as a result of Tenant's Extras Commencement Date as it
relates to the fiscal year used by the taxing authorities, upon receipt of an invoice
from Landlord. Notwithstanding the foregoing, Tenant shall continue to make the monthly
payments as stipulated above beginning on the Extras Commencement Date and the total
charges and payments shall be adjusted as set forth herein.
Section 16.02. Licenses and Permits.
Tenant shall be responsible for obtaining all permits respecting Tenant's use and
occupancy of the premises, and shall pay all minor privilege charges, occupancy permit
fees, license fees or other charges or taxes which are imposed on or with respect to the
premises or the use and occupancy thereof.
Section 16.03. Taxes on Rentals and Other Sums Payable by Tenant.
Tenant shall pay Landlord, in addition to and along with the rental otherwise
payable hereunder, a sum equal to the aggregate of any municipal, city, county, state or
federal excise, sales, use or privilege taxes legally levied or imposed, or hereafter
legally levied or imposed, during the term hereof or any extension or renewal hereof,
against or on account of the amounts payable hereunder or the receipts thereof by
Landlord (except state, federal or any other income taxes imposed or levied against
Landlord), which shall be paid monthly with the installments of rental as hereinabove
provided.
Section 16.04. Personal Property Taxes.
Tenant shall pay, prior to delinquency, all taxes levied upon fixtures,
furnishings, equipment and all other personal property belonging to Tenant and placed on
the premises by the Tenant. In the event any or all of the Tenant's fixtures,
furnishings, equipment and other personal property shall be assessed and taxed with the
Landlord's real property, the Tenant shall pay to Landlord its share of such taxes
within ten (10) days after delivery to Tenant by Landlord of a statement setting forth
the amount of such taxes applicable to the Tenant's property.
ARTICLE XVII
TENANT'S PROPERTY
Section 17.01. Trade Fixtures.
(a) All trade fixtures and equipment (called "fixtures" in this Article)
installed by Tenant in the premises shall be new at the time of installation and shall
be owned, leased or financed in the name of Tenant only. Promptly upon Landlord's
request, Tenant shall furnish Landlord with evidence of the nature of its interest in
such fixtures. Throughout the term, such fixtures shall be maintained by Tenant in
attractive condition and in good repair, and shall remain the property of Tenant. Such
fixtures shall be removable at the expiration of the term of this Lease if Tenant is not
then in default under this Lease, and shall be removed by Tenant at the end of the term
upon Landlord's demand; and upon removal Tenant shall repair any damage to the premises
caused by installation or removal of such fixtures and any wear and tear caused by the
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presence or use of such fixtures. The term "fixtures" does not include any items to be
installed or paid for by Tenant under Section H of Exhibit 2.
(b) Tenant hereby grants to Landlord a security interest in all of its fixtures
from time to time located on the premises, as security for the payment of rent and the
performance of Tenant's other obligations under this Lease to the extent of the
reasonable value of such fixtures; and Tenant shall on request furnish to Landlord an
itemized list of such fixtures (with serial numbers), and shall execute upon request a
standard financing statement and any further documents evidencing this assignment which
may, in the reasonable judgment of Landlord, be required under law to perfect the
security interest of Landlord and shall pay to Landlord all costs and taxes for
recording such .financing statement. Upon any default by Tenant under this Lease,
Landlord may foreclose on the security interest created by this subsection. Upon any
such foreclosure, if Landlord elects to conduct a private sale of the collateral, then
Landlord shall be entitled to purchase the Tenant's interest in the collateralized
fixtures for an amount equal to the original cost of such fixtures, less accumulated
depreciation thereon from the date of installation (computed by the double declining
balance method of depreciation over a life based upon applicable IRS Guidelines), and
less any principal balance and interest due by Tenant to the holder of any prior lien
upon such fixtures.
(c) Prior to the beginning of the term and at any other time Tenant installs
fixtures in the premises, Tenant shall obtain agreements, in form satisfactory to
Landlord, from the lessors and holders of all security interests in Tenant's fixtures on
the premises, providing that; (i) before such fixtures are removed or sold by reason of
Tenant's default under any fixture lease or security agreement, such lessor or security
holder shall give Landlord written notice of its intention to foreclose or repossess
such fixtures, and Landlord shall have sixty (60) days thereafter in which to. assume
Tenant's obligation under any such fixture lease or to purchase any security interest in
fixtures for the outstanding debt secured thereby; (ii) the lessor or security holder
shall not remove such fixtures during the said sixty (60) day period without Landlord's
approval; (iii) notwithstanding item (ii) hereof, upon termination of this Lease the
lessor or security holder shall remove such fixtures within thirty (30) days after
notice from Landlord to do so, or within thirty (30) days after the expiration of the
aforesaid sixty (60) day period in the absence of notice of removal, and upon failure to
do so such fixtures shall, at Landlord's option, be considered to be abandoned property
and may be removed by Landlord at the expense of the lessor or security holder; and (iv)
if such lessor or security holder removes any such fixtures, it will repair any damage
to the premises caused either by the installation or by the removal thereof.
Section 17.02. Negligence of Landlord and Acts of Other Tenants.
(a) Tenant shall carry standard fire and extended coverage insurance on its
trade fixtures, merchandise and other personal property in the premises for their full
replacement value and the provisions of Section 15.02 (e) and (f) shall apply with
respect to such insurance. Landlord shall not be liable to Tenant for any damage to any
such property or to any property required to be insured by Tenant pursuant to Section
19.01 from any cause, unless (i) such damage is due to Landlord's negligence, and (ii)
such damage is caused by an occurrence which is not an insured hazard under the standard
fire and extended coverage insurance which is available for insuring such property of
Tenant at the time of the loss; it being understood that it is not the intention of the
parties that Landlord be relieved from liability to Tenant for negligence contrary to
any statute or public policy of the State in which the Center is located, but rather
that Tenant avail itself of available insurance coverage without subjecting Landlord to
liability for losses that could have been insured, and without subjecting Landlord to
subrogation claims of any insurer.
(b) Landlord shall not be liable to Tenant for damage to Tenant or to Tenant's
property due to the negligence or intentional acts of any other tenant in the Center or
to any condition existing on or emanating from the premises of any other tenant which is
caused by such tenant or its agents or contractors, nor shall Tenant be entitled to an
abatement of rent or to claim an actual or constructive eviction, whole or partial,
permanent or temporary, by reason of any such condition on or emanating from such other
tenant's premises.
ARTICLE XVIII
LANDLORD'S ENTRY ON PREMISES
Section 18.01. Landlord's Entry.
Landlord and its representatives may enter the premises at any time to inspect the
premises, to enforce the provisions of this Lease, to make repairs required of it
hereunder, if any, to rectify defaults of Tenant pursuant to the rights granted to
Landlord under Section 23.01, to make repairs to other premises in the Center, to check
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the temperature in the premises, and to repair any utility lines or system or systems
servicing other parts of the Center, or to rectify any condition in the premises -
adversely affecting other occupants of the Center. Landlord may bring upon the premises
all things necessary to perform any work done in the premises pursuant to this Section
18.01. If the premises shall not be open for business at any time Landlord deems it
necessary to enter therein, Landlord may enter the premises by means of a master key, or
by force, and Tenant hereby waives all claims against Landlord or its agents which may
arise by reason of any such entry. Nothing herein contained shall be deemed or
construed to impose upon Landlord any obligation or responsibility whatsoever for the
care, maintenance or repair of the premises, except as otherwise specifically provided
in this Lease. Any work performed by Landlord hereunder shall be completed
expeditiously, subject to delays excusable under Section 9.01. Tenant shall permit
Landlord, at any time within ninety (90) days prior to the expiration of this Lease, to
place upon the premises any usual or ordinary "For Lease" signs and during such ninety
(90) day period Landlord or Landlord's agents may, during normal business hours, enter
upon the premises and exhibit same to prospective tenants.
ARTICLE XIX
FIRE AND OTHER CASUALTY
Section 19.01. Fire and Other Casualty.
If the premises shall be damaged or destroyed by fire, or other casualty included
in the standard extended coverage endorsement to fire insurance policies used in the
State in which the Center is located, Landlord shall, with reasonable diligence, but
subject to delays in adjusting the insurance loss and excusable delays under Section
9.01, repair the damage to (or replace) those parts of the premises and the facilities
therein which were originally constructed and/or installed by Landlord at its expense
under Exhibit 2. If Landlord makes any such repairs or replacements because of damage
arising out of any casualty (or if damage arising out of any casualty is limited to
those parts of the premises and-the facilities therein which were originally constructed
and/or installed by Tenant or at Tenant's expense under Exhibit 2 and/or other leasehold
improvements made by Tenant on the premises), then Tenant shall with reasonable
diligence repair the damage to (or replace) those parts of the premises and the
facilities therein which were originally constructed and/or installed by Tenant or at •
Tenant's expenses under Exhibit 2, and all other leasehold improvements made by Tenant
on the premises. Notwithstanding the foregoing, if as a result of any casualty the
premises is substantially destroyed, or the building in which the premises is located is
substantially destroyed or damaged (irrespective of damage to the premises), then
Landlord may, by written notice to Tenant within six (6) months after such occurrence,
elect to terminate this Lease, in which event this Lease shall terminate on the date
specified in such notice, and all obligations of the parties hereunder shall be adjusted
as of such date. Except as otherwise provided in this Section 19.01, this Lease shall
not terminate as a result of any damage or destruction to,the premises.
Tenant shall carry standard fire and extended coverage insurance, including
sprinkler damage, vandalism and malicious mischief, for the full replacement value of
those parts of the premises and the facilities therein which were originally constructed
and/or installed by Tenant or at Tenant's expense under Exhibit 2, and on all other
leasehold improvements made by Tenant or at Tenant's expense. All such insurance shall
include Landlord and/or, at Landlord's option any holder of a deed of trust or mortgage
upon the premises, as named insureds. In the event of termination of this Lease for any
reason, said insurance policy and the right to all proceeds thereunder shall belong to
Landlord.
Landlord shall maintain fire and extended coverage insurance throughout the term
of this Lease in an amount not less than eighty percent (80%) of the replacement value
of the premises or such higher amount as it may desire or which may be requested by any
lender placing a mortgage, deed of trust or other security device on the Center or any
part thereof. Tenant hereby waives any right of recovery from Landlord, Landlord's
officers and employees, and Landlord hereby waives any right of recovery from Tenant,
Tenant's officers or employees, for any loss or damage (including consequential loss)
resulting from any of the perils insured against in the standard form fire insurance
policy with extended coverage endorsement, and, additionally, the parties shall give
their respective insurance carriers notices of this waiver and secure a subrogation
waiver endorsement from each carrier. Commencing on the Extras Commencement Date,
Tenant agrees to pay Landlord Tenant's pro rata share of tie cost of said insurance in
the proportion in which the gross leased floor area of the premises bears to the gross
leasable floor area of all of the buildings in the Center covered by said insurance.
The amount requested to be paid hereunder shall be paid within ten (10) days after
written demand is sent by Landlord to Tenant. Notwithstanding the foregoing, Landlord,
at its option, shall have the right to estimate the amount of Tenant's pro rata share of
the cost of said insurance and to collect and impound from Tenant on a monthly,
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quarterly or such other basis as Landlord may, in its discretion, determine the amount
of Tenant's estimated pro rata share of such costs. Within ninety (90) days after
payment of the premium for said insurance, Landlord shall provide Tenant with a
reconciliation of Tenant's impound account. Notwithstanding the foregoing, Landlord
shall, at its option, have the right to include the cost of the foregoing insurance as
part of the common area costs, and to collect and impound such cost as provided in
Section 7.03 of this Lease, or to bill Tenant separately for such cost.
During the term of this Lease, Landlord shall maintain property damage and public
liability insurance against claims for personal injury, death, or property damage
occurring on the common areas and such other insurance which it deems reasonably
necessary for the operation of the Center. The limits of liability of such insurance
shall be in such amounts as Landlord shall determine. Landlord shall have the option to
include such insurance in so-called "Blanket Policies" or such policies which Landlord
maintains to cover such items. Commencing on the Extras Commencement Date, Tenant shall
pay to Landlord, as additional rent, Tenant's pro rata share of the cost of all such
insurance maintained by Landlord. Tenant's pro rata share shall be determined by the •
ratio that the floor area of the premises bears to the total leasable floor area of the
buildings in the Center. The amounts payable hereunder shall be paid by Tenant to
Landlord within ten (10) days after written demand is sent by Landlord to Tenant.
Notwithstanding the foregoing, Landlord shall, at its option, have the right to include
the cost of the public liability and property damage insurance on the common areas and
any other insurance maintained by Landlord as part of the common area costs, and to
collect and impound such cost as herein provided, or bill Tenant separately for such
cost.
with respect to any destruction (including any destruction necessary in order to
make repairs required by any declaration of any authorized public authority) which
Landlord is obligated to repair or may elect to repair under the terms of this Lease,
Tenant waives any statutory or other right Tenant may have to cancel this Lease as a
result of such destruction.
ARTICLE XX
EMINENT DOMAIN
Section 20.01. Effect of Total or Partial Condemnation.
If the premises is condemned in whole or part under the power of eminent domain,
this Lease shall terminate as to the part condemned on the date title or possession
vests in the condemning authority, whichever is first.
Section 20.02. Partial Condemnation Procedure.
If any condemning authority notifies Landlord of a proposed condemnation of more
than twenty-five percent (25%) of the ground floor area of the premises, Landlord shall
give Tenant written notice of the proposed condemnation together with whatever plats and
data are furnished to Landlord by the condemnor concerning the extent of the proposed
condemnation of the premises. Tenant shall have fifteen (15) days after the date of
such notice in which to elect to cancel this Lease effective upon consummation of the
condemnation. If Tenant gives Landlord written notice of such election within said
fifteen (15) days, and if the proposed condemnation is consummated, then this Lease
Shall terminate entirely on the same date that this Lease terminates as to the condemned
portion of the premises under Section 20.01. If Tenant does not make a timely election
to cancel this Lease, and the condemnation is consummated, then Landlord shall, subject
to the excusable delays under Section 9.01, restore the remaining premises as a complete
architectural unit; and the minimum rent hereunder shall thereafter be reduced
proportionately to the reduction in the ground floor area of the premises.
Section 20.03. Other Condemnation in the Center.
If more than twenty-five (25%) of the ground floor area of the building in which
the premises is located or of other buildings in the Center is condemned under the power
of eminent domain, or if the nature, location or extent of any proposed condemnation
affecting the Center is such that Landlord elects in good faith to demolish all or
substantially all of the Center or of the building in which the premises is located,
then Landlord may terminate this Lease by giving written notice of termination to Tenant
at any time after such condemnation, and this Lease shall terminate on the date
specified in such notice.
Section 20.04. Condemnation Awards.
In the event of any condemnation of all or part of the premises or the Center,
Tenant shall not be entitled to share in any part of the condemnation award (including
consequential damages) for the taking, either for its leasehold estate or for its rights
15 /"
8.
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to use any of the common areas of the Center, whether or not this Lease is terminated
under the provisions of this Article XX by reason of such condemnation. Tenant shall,
however, be entitled to retain any separate award obtained from the condemning authority
for moving expenses, loss of trade fixtures, and loss of business, to the extent
compensable without diminution of Landlord's award.
Section 20.05. Condemnation After Discontinuance of Business.
All rights of Tenant under this Article XX to cancel this Lease or to receive
reductions of rent, and to claim the benefits of Section 20.01 as to a partial
condemnation, shall be operative only if Tenant is not in default of its obligation to
continuously conduct business under Section 6.02 on the date Landlord notifies Tenant of
any proposed condemnation.
Section 20.06. Definitions.
As used herein the terms "condemned" and "condemnation" include the sale by
Landlord to a condemning authority under threat of condemnation. Landlord shall have
the power and authority to convey the entire fee simple title in all or any part of the
premises or the Center to the condemning authority without Tenant's joinder, and any
such conveyance by Landlord alone shall be deemed free and clear of any leasehold or
other interest by Tenant therein, and any condemning authority shall be entitled to rely
upon the provisions of this sentence in accepting a deed from Landlord alone. As used
herein the term "condemnation award" includes the proceeds of any sale by Landlord to a
condemning authority under threat of condemnation.
ARTICLE XXI
ADVERTISING CONTRIBUTION
Section 21.01. Advertising Contribution.
NTENTIONALLY OMITTED_
LA
ARTICLE XXII
BANKRUPTCY OR INSOLVENCY
Section 22.01. Bankruptcy. '
If any transfer of Tenant's interest in the premises created by this Lease shall
be made under execution or similar legal process, or if a petition is filed by or
against Tenant to adjudicate Tenant a bankrupt or insolvent under any federal or state
law, or if a receiver or trustee shall be appointed for Tenant's business or property
and such appointment is not vacated within ten (10) days, or if a petition is filed by
or against Tenant under any provision of federal or state law for a corporate
reorganization of Tenant or an arrangement with its creditors, or if Tenant makes an
assignment or deed of trust for the benefit of its creditors, or if in any other manner
Tenant's interest under this Lease shall pass to another by operation of law, then, in
any of said events, Tenant shall be deemed to have committed a material breach of this
Lease, and Landlord may, at its option, terminate this Lease and reenter the premises;
but, notwithstanding such termination, Tenant shall remain liable for all rent and
damages which may be due at the time of such termination and for the liquidated damages
set forth in Section 23.03 of this Lease. As used in this Section 22.01 the word
"Tenant" includes any guarantor of Tenant's obligations under this Lease. Nothing
herein or in Section 23.03 shall be deemed to preclude Landlord from obtaining the
maximum amount recoverable from Tenant under law in any proceeding referred to in this
Section 22.01; and Tenant hereby covenants that in the event of a termination or reentry
under this Section 22.01, Tenant shall be liable to Landlord for the maximum amount
recoverable from Tenant under the law pertaining to the proceeding resulting in such
reentry or termination by Landlord.
Section 22.02. Bankruptcy.
Notwithstanding the provisions of Section 22.01 hereof, if any provision of this
Article XXII shall be unenforceable by reason of any amendment to the federal bankruptcy
law, and any trustee in bankruptcy elects to assume or assign Tenant's rights and
obligations hereunder, Landlord may nonetheless terminate this Lease unless such trustee
(1) cures all defaults then existing hereunder, and (2) provides adequate assurances:
(i) of the source of rent and other consideration due under this Lease; (ii) that any
percentage rent due under this Lease will not decline substantially; (iii) that
assumption or assignment of this Lease will not breach any provision, such as a radius,
location, use or exclusivity provision, in any other lease, financing agreement or
master agreement relating to the Center; and (iv) that assumptions or assignment of this
Lease will not disrupt any tenant mix or balance in the Center.
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411 411
ARTICLE XXIII
DEFAULT AND REMEDIES
Section 23.01. Abatement of Tenant's Defaults.
If Tenant fails to maintain any insurance required to be maintained by it under
this Lease, or fails to furnish evidence of insurance renewals at the times in this •
Lease required, or allows such insurance to lapse or be canceled, Landlord may obtain
such insurance for Tenant without notice. If Tenant defaults in the performance or
observance of any term, covenant or condition to be performed or observed by it under
this Lease, and such default continues for more than five (5) days after written notice
thereof, Landlord may take action to rectify such default on Tenant's behalf, and
Landlord may rectify such default on Tenant's behalf immediately and without such notice
if immediate action is reasonably believed to be required in order to avoid injury or
damage to other persons or property (including Landlord's property) . Landlord may enter
the premises to rectify such defaults. All money advanced and costs and expenses
incurred by Landlord in rectifying any default (including Landlord's reasonable legal
fees) together with interest thereon at a rate equal to the lower of (i) the highest
rate permitted by law or (ii) eighteen percent (18%) per annum from the date advanced
until the date paid by Tenant, shall be repaid by Tenant to Landlord on demand.
Section 23.02. Distraint and Default Rent.
If any payments of rent or additional rent are in arrears for more than ten (10)
days, (a) Landlord may distrain therefor, and shall be entitled to the benefit of TT
laws pertaining to distraint or actions in the nature of distraint; (b) Tenant shall pay
Landlord a late charge equal to ten percent (11111_of the unpaid rent; and (c) beginning
on the 11th day of arrearage and continuing until such arrearage is paid, Tenant shall
be liable to Landlord for payment of additional rent (herein called "arrearage rent" for
the purpose of• this Section 23.02) for the period of such arrearage at an annual rate
equal to the lesser of (i) the highest rate permitted by law or (ii) eighteen percent
(11a).... Any payments by Tenant to Landlord made after the accrual of arrearage rent may
be applied by Landlord to such arrearage rent irrespective of the obligation for which
Tenant may earmark such payment.
Section 23.03. Termination and/or Reletting for Default; Liquidated Damages.
If Tenant defaults in the payment of rent or additional rent payable under this
Lease, and such default continues for more than five (5) days after written notice
thereof; or if Tenant defaults in the performance or observance of any term, covenant or
condition to be performed by it hereunder which may be performed merely by the payment
of money and such default is not rectified within five (5) days after written notice
thereof; or if Tenant shall allow any insurance policy required to be carried by it
hereunder to lapse or to be canceled and does not cause such insurance to be replaced
and furnish Landlord with evidence of such replacement within five (5) days after
written notice of such lapse or cancellation from Landlord, its mortgagee, or the
insurer; or if Tenant defaults in the performance or observance of any other term,
covenant or condition of this Lease on its part to be performed or observed and does not
commence to rectify such default within fifteen (15) days after written notice thereof
or does not thereafter diligently complete the rectification thereof; or if Tenant
vacates or abandons the premises; or if any guarantor of this Lease breaches any
covenant of its Guaranty agreement; then, in any of such events, Landlord may, at its
option, (i) terminate this Lease and reenter the premises with or without application to
or process of law and without liability for any entry by force; or (ii) reenter the
premises in the aforesaid manner without terminating this Lease, and assume custody and
control thereof for the purpose of protecting the premises and/or for re-letting the
premises as agent for Tenant, if Landlord elects to re-let, and such agency shall be
deemed as a power coupled with an interest and shall be irrevocable; and in either such
event Landlord shall be entitled to the benefit of all provisions of the public general
laws of the State in which the Center is located and the public local laws and
ordinances of the locality in which the premises is located respecting the summary
eviction of tenants in default or tenants holding over, or respecting proceedings in
forcible entry and detainer. Notwithstanding the foregoing, Section 27.06 shall apply,
and:
(A) Tenant shall remain liable for any rent and damages which may be due or
sustained prior thereto, and shall pay Landlord for all costs and expenses, including
but not limited to, attorneys' and brokers' fees and expenses, paid or incurred by
Landlord in connection with: (i) obtaining possession of the premises; (ii) removal and
storage of Tenant's or other occupant's property; (iii) care, maintenance and repair of
the premises while vacant; (iv) reletting the whole or any part of the premises; and (v)
repairing, altering, renovating, partitioning, enlarging, remodeling, or otherwise
putting the premises, either separately or as part of larger premises, into condition
acceptable to, and reasonably necessary to obtain new tenants.
17
(B) In the event this Lease is terminated pursuant to clause (i) above, Tenant
shall further be liable to Landlord for liquidated damages to be calculated and payable
in one of the two following methods, which may be designated by Landlord at any time
within two (2) years after termination: (i) a lump sum payment in an amount equal to the
difference between the annual rent and additional rent payable for the balance of. the
term (including annual tax increases and insurance premium increases equal to the
maximum such increases paid or payable by Tenant during any year prior to termination,
and percentage rent at an annual rate equal to the maximum percentage rent paid or
payable by Tenant during any year prior to termination), and the fair rental value of
the premises for the balance of the term; provided, however, that if Landlord relets the
premises for all or a part of the balance of the term, then Landlord, may, at its
option, designate the monthly fair rental value of the premises for the balance of the
term as being equal to the average monthly rent payable by the new tenant; or (ii) the
monthly rent and additional rent payable by Tenant hereunder, which shall be payable
when due, less the rent, if any, received by Landlord from others to whom the premises
may be rented on such terms and conditions and at such rentals as Landlord, in its sole
discretion, shall deem proper. Pending a final election between (i) and (ii) above,
Landlord may collect rent under (ii) without prejudice to its option to make a final
election within the period specified herein. •
(C) The obligations of Tenant under Section 14.01 hereof shall survive
termination of this Lease or reentry by Landlord without termination, pursuant to this
Section 23.03 until the fixed termination date fixed by Section 2.01, and shall be
binding upon Tenant until such date.
ARTICLE XXIV
CUMULATIVE REMEDIES AND GOVERNING LAW
Section 24.01. Remedies Cumulative.
Mention in this Lease of any specific right or remedy shall not preclude Landlord
from exercising any other right or remedy available at law or in equity, and the failure
of Landlord to insist in any one or more instances upon a strict or prompt performance
of any obligation of Tenant under this Lease or to exercise any option, right or remedy
herein contained or available at law or equity shall not be construed as a waiver or
relinquishment thereof, unless expressly waived in writing by Landlord. The waiver by
Landlord of any breach of this Lease shall not constitute a waiver of the covenant, term
or condition breached or of any subsequent breach of the same or any other covenant,
term or condition of this Lease, and the acceptance by Landlord of rent during the
continuance of any breach of this Lease by Tenant shall not constitute a waiver of such
breach. Whenever any provision of this Lease requires Landlord's consent to any act or
conduct of Tenant, such provision shall be construed to mean Landlord's written consent;
and knowledge of, or acquiescence by Landlord in, any such act or conduct shall not be
deemed a waiver of the requirement for written consent. Exercise by Landlord, or the
beginning of the exercise by Landlord, of any one or more of the rights or remedies
provided for in this Lease or now or hereafter existing at law or in equity or by
statute or otherwise shall not be construed as an election of remedies so as to preclude
the simultaneous or subsequent exercise by Landlord of any other right or remedy for
such breach. If Landlord obtains a judgment against the Tenant arising out of any
default by Tenant under this Lease, then Tenant shall pay Landlord all reasonable
counsel fees incurred by Landlord with respect to such default.
Section 24.02. Governing Law and Jurisdiction.
This Lease shall be construed under the laws of the State in which the Center is
located. The parties acknowledge that this Lease has been drafted, negotiated, made,
delivered and consummated in the State in which the Center is located. Tenant hereby
waives any objection to the venue of any action filed by Landlord against Tenant in any
state or federal court of the State in which the Center is located, and waives any claim
of forum non conveniens or for transfer of any such action to any other court.
Section 24.03. No Trial by Jury.
Landlord and Tenant hereby mutually waive trial by jury in any action, proceeding
or counterclaim brought by either of the parties hereto against the other with respect
to any matter arising out of or in any way connected with this Lease or the use and
occupancy of the premises. This waiver is knowingly, intentionally, and voluntarily
made by Tenant and Tenant acknowledges that neither Landlord nor any person acting on
behalf of Landlord has made any representations of fact to induce this waiver of trial
by jury or in any way to modify or nullify its effect. Tenant further acknowledges that
it has been represented (or has had the opportunity to be represented) in the signing of
this Lease and in the making of this waiver by independent legal counsel, selected of
its own free will, and that it has had the opportunity to discuss this waiver with
counsel. Tenant further acknowledges than it has read and understands the meaning and
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411 411
ramifications of this waiver provision.
ARTICLE XXV
RECORDING; NO REDEMPTION OR MERGER
Section 25.01. Recording.
At the request of the holder of any mortgage or deed of trust on the Center,
Tenant shall record this Lease at its cost, among the Land Records of the political .
subdivision in which the premises are located.
Section 25.02. Waiver of Redemption.
Tenant hereby expressly waives any and all rights of redemption granted by or
under any present or future laws in the event of Tenant being evicted or dispossessed
for any cause, or in the event of Landlord obtaining possession of the premises by
reason of the violation by Tenant of any of the covenants and conditions of this Lease
or otherwise. The rights given to Landlord herein are in addition to any rights that
may be given to Landlord by any statute or otherwise.
Section 25.03. Waiver of Claim of Merger.
If Landlord acquires title to the reversionary interest under any ground lease or
ground sublease from which its estate in the Center is derived, the merger of Landlord's
estate into or with such reversionary interest shall not effect an extinguishment of
this Lease and this Lease shall continue in force notwithstanding any such merger of
Landlord's estate and any reversionary estate; and Tenant agrees to execute any
instrument that may be required by Landlord, any mortgagee, prospective mortgagee, or
purchaser or prospective purchaser of the premises confirming that this Lease is in
force and effect notwithstanding any such merger.
ARTICLE XXVI
NOTICES
Section 26.01. Notices.
All notices from either party to the other under this Lease shall be sent by
telegram or by registered or certified mail, return receipt requested or hand delivered
with signed receipt. Whenever in this Lease reference is made to a notice to be given,
such notice shall be deemed to be given when mailed, wired or hand delivered to the
proper notice address of the party to be notified. Notices to Landlord shall be
addressed to it at P.O. Box 5678, Lutherville, MD 21094-5678, or by overnight delivery
to 170 w. Ridgely Road, Suite 300, Lutherville, MD 21093. Notices to Tenant shall be
•
addressed to it at the premises. Either party may from time to time designate a
different address for receiving notices, by giving the other party notice of the change
of address in the manner above specified.
ARTICLE XXVII
MISCELLANEOUS PROVISIONS
Section 27.01. Successors and Assigns.
This Lease and the covenants, terms and conditions herein contained shall inure to
the benefit of and be binding upon Landlord, its successors and assigns, and shall be
binding upon and inure to the benefit of Tenant and its permitted successors and
assigns. As used herein the term "Tenant" includes its permitted successors and
assigns, and the term "Landlord" includes its successors and assigns.
The term "agents" and "employees" as used with respect to Tenant, shall include
sublessees, concessionaires, franchisees and licensees of Tenant approved by Landlord,
and the agents, servants and employees of such sublessees, concessionaires, franchisees,
and licensees.
If Landlord transfers its estate in the premises, or if Landlord further leases
the premises subject to this Lease, Landlord shall thereafter be relieved of all
obligations of Landlord expressed in this Lease or implied by law.
If Tenant obtains a money judgment against Landlord, any of its partners or its
successors or assigns under any provisions of, or with respect to this Lease or on
account of any matter, condition or circumstance arising out of the relationship of the
parties under this Lease, Tenant's occupancy of the building or Landlord's ownership of
the Center, Tenant shall be entitled to have execution upon such judgment only upon
Landlord's fee simple or leasehold estate in the Center (whichever is applicable) , and
not out of any other assets of Landlord, any of its partners, or its successors or
19
•
assigns; and Landlord shall be entitled to have any such judgment so qualified as to
constitute a lien only on said fee simple, or leasehold estate, subject to any liens
antedating such judgment; provided, however, that this sentence shall be inapplicable to
the extent that the judgment against Landlord is covered by insurance.
Section 27.02. Tenant's Corporate Authority.
If Tenant is a corporation, it shall, concurrently with the signing of this Lease,
furnish to Landlord certified copies of the resolutions of its Board of Directors (or of
the executive committee of its Board of Directors) authorizing Tenant to enter into this
Lease; and it shall furnish to Landlord an opinion of independent counsel (in form
reasonably satisfactory to counsel for Landlord) that Tenant is a duly organized
corporation under the laws of the State of its incorporation, is qualified to do
business in the State in which the Center is located, is in good standing under the laws
of the State in which the Center is located, and has the power and authority to enter
into this Lease, and that all corporate action requisite to authorize Tenant to enter .
into this Lease has been duly taken.
Section 27.03. Entire Agreement.
This Lease contains the final agreement between the parties hereto. Landlord shall
not have any obligation not expressly set forth herein; and neither party shall be bound
by any promises or representations prior to the date hereof which are not expressly set
forth herein.
Section 27.04. Captions; Deletions; Definitions.
The headings and captions used in this Lease are for convenience only and are not
a part of this Lease. If any printed provision of this Lease is deleted by the parties,
such deletion may not be utilized in interpreting the rights of the parties hereunder;
but each party shall have all rights which it would have had, at law or otherwise, if
such deleted provision had never been printed herein.
As used in this Lease, the term "calendar month" shall mean any of the twelve (12)
named months of the year; and the term "calendar quarter" shall mean a period consisting
of three (3) calendar months beginning on January 1, April 1, July 1, or October 1. If
the term of this Lease begins on a day other than the first day of a calendar quarter as
defined in this Section, the first calendar quarter of the term hereof shall be the
period beginning on the commencement date of the term and ending on the day preceding
the next calendar quarter during the term. If the term of this Lease ends on a day
other than the last day of a calendar quarter, the last calendar quarter of the term
shall be deemed to end on such date of termination.
Section 27.05. Site Plan.
Nothing shown on Exhibit 1 shall be deemed to be a representation by Landlord as
to any matter respecting the Shopping Center or as a condition of this Lease, unless
such representation or condition is expressly set forth herein, said Exhibit 1 being
attached only for the purpose of showing the land encompassed in the Center, the
approximate size and location of the premises and Landlord's present proposed layout of
the Center. Any reference to floor area of the premises shall be deemed to include area
measured to the center of party walls between tenants and to the outside of walls
between the premises and any service corridor and/or common areas. Landlord reserves
the absolute right to effect such other tenancies in the Center as Landlord, in the
exercise of its sole business judgment, shall determine to best promote the interests of
the Center. Tenant does not rely on the fact, nor does Landlord represent, that any
specific tenant or number of tenants shall, during the term of this Lease, occupy any
space in the Center.
Section 27.06. Obligations Surviving Terminations.
If this Lease is terminated for any reason other than default of the Tenant, all
liabilities of the parties shall be adjusted as of the effective date of termination.
Any termination hereof by reason of a default of the Tenant shall not affect any
obligation or liability of Tenant under this Lease which accrued prior to the effective
date of termination, and all such obligations and liabilities of Tenant shall survive
such termination.
Section 27.07. Genders.
The use of the masculine, feminine or neuter gender herein shall be deemed to mean
the correct gender applicable, and the use of the singular shall include the plural, or
conversely, as the context may require.
20 a
!/
Section 27.08. Modifications for Financing Reasons.
Tenant acknowledges that it has been advised that Landlord intends to procure some
part or all of the funds to finance the construction of the Center from one or more
financing institutions. If any such financing institution requires any modification of
the terms and provisions of this Lease as a condition to financing (including issuance
of a commitment) that Landlord obtains or may desire to obtain, then Tenant shall,
within fifteen (15) days after Landlord's request therefor, execute the necessary lease
amendment to accomplish such modifications; but notwithstanding anything in this
paragraph to the contrary, Tenant shall not be required to agree to any modification of
the provisions of this Lease relating to the amount or rate of rental reserved, the
purposes for which the premises may be used, the size and/or location of the premises,
the duration of the term or the commencement date, or the improvements to be made by
Landlord to the premises prior to commencement of the term.
Section 27.09. 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 to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall
not be affected thereby and every other term, covenant or condition of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
Section 27.10. Brokers.
Tenant represents and warrants that it has not dealt with any broker in respect
of this Lease other than Bennett Williams, and agrees to defend, indemnify and save
Landlord harmless against all demands, claims, and liabilities arising out of any
dealings between Tenant and any other broker in respect of this Lease.
Section 27.11. No Partnership.
By executing this Lease, Landlord does not, in any way or for any purpose, become
a partner or joint venturer of Tenant in the conduct of Tenant's business, or otherwise.
Any provisions of this Lease regarding percentage rent are included solely for the
purpose of providing a method whereby the rent is to be measured and ascertained. Any
provisions of this Lease regarding the use of the premises or operation of Tenant's
business are included solely for the purpose of maintaining an orderly shopping center.
Section 27.12. Surrender of Premises.
At the expiration of the tenancy hereby created, or upon any reentry by Landlord
into the premises pursuant to Section 23.03, Tenant shall surrender the premises in the
same condition as the premises were upon the commencement of the original term of this
Lease, reasonable wear and tear excepted, and shall deliver all keys for the premises to
Landlord at the place then fixed for the payment of rent, and shall inform Landlord of
all combinations on locks, safes and vaults, if any, in the premises. Tenant shall
remove all of its trade fixtures and inventory and any alterations, additions or
improvements which Landlord requires to be removed pursuant to Section 11.03, before
surrendering the premises as aforesaid, and shall repair any damage to the premises
caused by such removal. Tenant's obligations to observe and perform this covenant shall
survive the expiration or other termination of the term of this Lease.
Section 27.13. No Option.
The submission of this Lease for examination does not constitute an option or
offer to lease space. This Lease shall have no binding effect on Landlord and Tenant
unless executed by the Landlord and the Tenant and a fully-executed original is
delivered to the Tenant.
Section 27.14. Relocation.
-----
Landlord reserves the right upon ninety (90) days prior written notice to Tenant,
to relocate Tenant to such other space, area, or floor within the Center as Landlord may
deem advisable or necessary, provided, that such other space or area shall be of a
similar nature and size to the premises. If such a relocation is effected, then upon
request of Landlord Tenant shall execute any Amendment to this Lease re-describing the
premises, but all other terms, covenants and conditions of this Lease shall remain in
full force and effect. Landlord shall pay all reasonable moving costs incurred by
Tenant in connection with such move and the reasonable coast to build out the new
premises to a condition substantially similar to the premises immediately prior to such
relocation. Should Tenant refuse to permit Landlord to move Tenant to such new space,
Landlord, in addition to any other remedies it may have by reason of Tenant's default
21
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under this Lease, shall have the right to terminate this Lease by written notice to
Tenant, effective as of the date of such notice.
Section 27.15. Tenant's Existing Lease Agreement. J A
'1
Tenant currently occupies 1,500 square feet of floor area (the "Existing
Premises") in the Center under a lease agreement dated June 28, 1991, as amended (the
"Existing Lease") . Tenant shall continue to operate its business in the Existing
Premises until Tenant opens for business in the premises. In addition, Tenant shall be
responsible for putting the Existing Premises into vanilla shell condition in accordance
with the requirements set forth on Exhibit 6 attached hereto immediately following the
date that Tenant opens for business in the in the premises. Tenant shall notify
Landlord when Tenant has completed the renovations to the Existing Premises. Upon the
date that the renovations to the Existing Premises have been completed in accordance
with Exhibit 6, as determined by Landlord, then the Existing Lease shall terminate,
provided that Tenant has fulfilled all of its obligations under the Existing Lease. No
further documentation shall be required to effect the termination of the Existing Lease.
Tenant shall be responsible for the payment of all minimum rent and additional rent
under the Existing Lease until the termination date of the Existing lease.
22
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IN WITNESS WHEREOF the parties hereto have executed this Lease under their
respective hands and seals as of the day and year first above written.
ATTEST: LANDLORD:
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Exhibit 1
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SITE PLAN
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Exi - .
SHOPPING CENTER
EXHIBIT 2
•
SPECIFICATIONS
A. LANDLORD, AT ITS COST AND EXPENSE, HAS CONSTRUCTED FLOOR, REAR AND SIDE WALLS, AND
THE ROOF, EXTENDED THE NECESSARY MAINS AND CONDUITS TO BRING WATER, SANITARY SEWER
SERVICE, AND ELECTRICITY TO THE PREMISES.
B. TENANT ACCEPTS THE PREMISES IN "AS-IS" CONDITION. TENANT SHALL BE RESPONSIBLE FOR
ALL IMPROVEMENTS TO THE PREMISES IN ORDER TO OPEN THE PREMISES FOR BUSINESS FOR
TENANT'S PERMITTED USE AND ALL LABOR, MATERIAL AND EQUIPMENT THEREFOR SHALL BE AT
TENANT'S COST AND EXPENSE.
All work included in or in addition to the foregoing shall be subject to Landlord's
approval as to design, materials and details.
C. PROVISIONS GOVERNING WORK PERFORMED BY TENANT.
1. All work performed by Tenant shall be performed in a first class and
workmanlike manner and with new materials.
2. Tenant shall be responsible for obtaining all permits required in connection
with the performance of its work.
3. Before Tenant or its contractors commence any work, they shall arrange with
Landlord for allocation of space for storage of equipment and materials and
for access to the site of the work. Storage of all materials and equipment
shall be confined to the areas from time to time designated by Landlord, and
access to the site of the work by Tenant's contractors, and their employees
and suppliers shall be confined to the routes from time to time designated by
Landlord.
4. Connections for utility service for Tenant and its contractors during the
construction period shall not be made without prior notice to Landlord and
without making arrangements satisfactory to Landlord for payment by Tenant
for such connections and service.
5. Tenant shall not engage any contractor for work respecting the premises
without Landlord's prior written approval of such contractor, which approval
shall not be unreasonably withheld.
6. Tenant shall require its contractors to comply with all reasonable
requirements of Landlord regarding coordination of work in the Center.
7. Tenant shall cause its contractors to remove and dispose of debris, rubbish,
surplus materials and temporary structures resulting from Tenant's work in
the premises, as may be necessary to avoid interference with construction or
when directed by Landlord.
8. Tenant shall cause its contractors to take all reasonable precautions to
protect other work in the Center from any damage owing to work performed by
Tenant's contractors; and Tenant shall indemnify Landlord for any damage to
any other work in the Center caused by Tenant's contractors.
9. If required by Landlord, Tenant shall cause its contractors to furnish
performance and labor and material payment bonds from a reputable surety
company and which shall include Tenant, Landlord, and other designees of
Landlord as obligees, without cost to Landlord or its designees.
10. If, in the opinion of Landlord's insurer, builder's risk insurance is
required to be carried on the improvements made by Tenant, in order to
prevent Landlord or its contractors from being deemed co-insurers under the
builder's risk insurance carried on the improvements constructed by Landlord,
Tenant shall carry builder's risk insurance on the work performed by Tenant
in such form and amounts as may be required by Landlord's insurers.
11. All work performed by Tenant shall be performed in compliance with applicable
laws and regulations.
12. Tenant shall cause its contractors to furnish the customary one year warranty
against defects in workmanship and materials, and in the event the Lease does
not commence or is terminated prior to the expiration of the warranty period
Ex2-1
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Landlord shall be entitled to the benefit of all such warranties, which are
hereby assigned to Landlord.
13. If any labor •dispute is caused or related to any of Tenant's contractors,
subcontractors or suppliers, Tenant shall, upon Landlord's demand, cause the
contractor, subcontractor or supplier causing, involved in or related to such
labor dispute to'immediately cease work and deliveries in the Center until
further notice from Landlord.
•
Ex2-2
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SHOPPING CENTER
EXHIBIT 3
•
Common Area Costa
Operating and maintenance costs of the common areas shall mean, for the purposes of
Section 7.03 of the Lease, the total costs and expenses incurred in operating and
maintaining the common areas and any appurtenances thereto and facilities thereon (or in
or on unpaved outdoor areas of the Center or in adjacent public streets or rights of
way), including, but not limited to, the following:
1. Gardening, landscaping, and maintenance of grass, trees, and shrubbery;
•
2. All premiums for all insurance on the vehicle areas and on any equipment and
systems in or pertaining to all common areas, including, but not limited to, public
liability insurance, property damage insurance, automobile insurance, sign insurance,
and fire and extended coverage insurance;
3. Watchman service and other security;
4. Personal property taxes on equipment and systems in, pertaining to, or used in
maintaining and operating all common areas;
5. Maintenance, repair, replacement, and cleaning of: paving, utility conduits,
pumping stations and force mains (on and/or off site) utilized for sanitary sewer and
water service in the Center, vehicle area lighting facilities, storm water management,
retention and drainage facilities and other utility conduits and facilities in the
common areas or in unpaved areas of the Center or public streets, Center signs and
wiring, retaining walls, curbs, gutters, fences, sidewalks, canopies, steps, escalators,
elevators and ramps on, to, or from the common areas and other areas of the Center or
public streets; exclusive of the cost for a replacement of an asset (or part) for which
a depreciation allowance is included hereunder if such replacement cost may not be
treated as an expense deduction under Internal Revenue Service Regulations;
6. Utility charges and other costs of lighting of the common areas and Center
signs and operating pumping stations, force mains and other like facilities;
7. Common area line painting and removal of snow and ice;
8. Collection and removal of trash from the common areas of the Center;
9. Depreciation of all machinery and equipment used in maintaining and operating
the common areas (including cleaning and snow removal equipment), and of Center signs,
traffic signals, sewer pumping stations and force mains (on and/or off site), which
depreciation shall be calculated on a straight line basis and on lives based upon the
Internal Revenue Service guidelines from time to time extant;
10. Power and fuel for operating vehicles and equipment used for cleaning,
maintenance and snow removal;
11. Salaries of personnel directly engaged in operating, cleaning and maintaining
the common areas (including security personnel and parking attendants), and all related
payroll charges and taxes; and
12. A charge for overhead equal to fifteen percent (15%) of all of the foregoing
costs and expenses.
Ex3-1
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SHOPPING CENTER
EXHIBIT 4
Rules and Regulations
Tenant shall at all times during the term of the Lease:
1. Use, maintain and occupy-the premises in a careful, safe, proper and lawful
manner, keep the premises and its appurtenances, including adjoining areas and
sidewalks, in a clean and safe condition;
2. Keep the sidewalks and areas contiguous to the premises free of ice, snow and
litter;
3. Keep all glass in the doors and windows of the premises clean;
4. Not, without the prior written consent of Landlord, place, maintain or sell any
merchandise in any vestibule or entry to the premises, on the sidewalks adjacent to the
premises, or elsewhere on the outside of the premises;
5. Keep the premises in a clean, orderly and sanitary condition, free of insects,
rodents, vermin and other pests, and if by reason of any infestation of-the premises by
insects, rodents, vermin or other pests, any other store in the Center becomes infested
by any such condition, Tenant shall be responsible for exterminating any such condition
from other infested stores;
6. Not permit undue accumulations of garbage, trash, rubbish and other refuse in
the premises, keep refuse in closed containers within the interior of the premises until
removed, and arrange for regular removal of refuse at its expense;
7. Not use, permit or suffer the use of any apparatus or instruments for musical
or other sound reproduction or transmission in such manner that the sound emanating
therefrom or caused thereby shall be audible beyond the interior of the premises;
8. Not load or unload fixtures or merchandise from any premises entrance except
the rear delivery entrance;
9. Not deliver or suffer or permit delivery of merchandise to, or collection of
refuse from, the premises after 11:00 a.m. on any day;
10. Light the show windows and exterior signs of the premises to the extent that
Landlord may from time to time require;
11. Keep all mechanical apparatus free of vibration and noise which may be
transmitted beyond the confines of the premises;
12. Not cause or permit objectionable odors to emanate or be dispelled from the
premises .
•
13: Not overload the floors or electrical wiring and not install any additional
electrical wiring or plumbing without Landlord's prior written consent;
14. Not use show windows in the premises for any purpose other than display of
merchandise for sale in a neat and attractive manner;
15. Not conduct, permit or suffer any public or private auction sale to be
conducted on or from the premises, fictitious fire sale or going out of business sale;
16. Not solicit business in the common areas of the Center or distribute hand bills
or other advertising materials in the common areas, and if this provision is violated
the Tenant shall pay Landlord the cost of collecting same from the common areas for
trash disposal.
In addition Tenant shall be responsible for the following:
a) Having the filters in the hoods to the food processing exhaust systems removed daily
and washed; (b) having the hoods scraped and cleaned a minimum of once every three (3)
months, or as designated by Landlord, a record of such cleaning to be presented to
Landlord's Center Manager; (c) installing grease traps in the premises and keep same
in a clean and sanitary condition and in good working order and repair, such traps to be
thoroughly cleaned on a monthly basis and a record of such cleaning to be presented to
Ex4-1 B, C
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Landlord's Center Manager; and (d) if gas is used in the Premises, installing a proper
gas cut-off valve in the premises. Notwithstanding the foregoing, Landlord reserves the
right to have the grease traps in the premises cleaned on a monthly basis at Tenant's
sole cost and expense.
•
Ex4-2
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SHOPPING CENTER
EXHIBIT 5
TENANT'S CERTIFICATE
The undersigned, as Tenant, under certain lease dated
(the "Lease") made with
, as Landlord, hereby certifies
as follows:
(1) That the undersigned has entered into occupancy of the •premises described in the
Lease;
(2) That the Lease is in full force and effect and has not been assigned, modified,
supplemented or amended in way, except
(3) That the same represents the entire agreement between the parties as to said
leasing;
(4) That the commencement date of the term of this Lease is
(5) That there is an unexpired term hereunder of years;
(6) That all conditions of the Lease to be performed by Landlord and necessary to the
enforceability of the Lease have been satisfied;
(7) That there are no defaults by either Tenant or Landlord hereunder;
(8) That no rents have been prepaid, other than as provided in the Lease;
(9) That on this date there are no existing defenses or offsets which the undersigned
has against the enforcement of the Lease by Landlord; and
(10) That it has received a set of keys to the premises on this date.
The undersigned hereby agrees:
(1) To disclaim all right, title or interest in the premises except the rights granted
by the Lease;
(2) Upon written request, to send a copy of any notice or demand given or made to the
Landlord pursuant to the provisions of the Lease, by registered mail to the owner
and holder of any first mortgage or deed of trust on the premises, or its assignee
upon being notified in writing of such mortgagee's (beneficiary's) or assignee's
name and address; and
(3) To give to the holder of said mortgage or deed of trust or its assignee the same
right as the Landlord has to cure any default complained of in said notice or
demand.
EXECUTED this day of , 19 •
By
By
Tenant
Ex5-1
�� C
r �: F.s-�K,xt'N?�x«..n><E?-�,�s:.w. �--r_. �-� _.�: -....,•. ,.�_ � 4�«°�=ac.s�a�.,;+�r::.,..tom.,.-� ... _ �. -. _ ,, •e--R,�-�.,.�, �-.. «.,-.w H-F... :�w'�.:-=�a�t..
,, , 411 411
Exhibit 6
Condition of Existing Premises
1. Perimeter walls restored to drywall surface, sanded, speckled, and
taped, and ready to receive wall covering. Tile on walls in seating
area to remain.
2. Existing restroom(s) turned over in working condition.
3. Ceiling consistent throughout and in new or like new condition. New or
like new 2 x 4 drop ceiling grid, complete with new or like new 2 x 4
fissured tile throughout. All damaged or stained tiles to be replaced.
4. Existing HVAC system turned over in good working condition.
5. Tile floor in seating area to remain. Existing concrete slab turned
over in good condition. Floor drains to be filled with concrete and
level to balance of floor. Minor flash patching to be done by new
tenant.
6. Existing electrical service and distribution turned over in good working
condition. All existing lighting to be 2 x 4 lay-in fluorescent or
alternative acceptable to Landlord.
7. All existing interior partition walls to be demolished.
8. Storefront, door, door hardware, exit and emergency signs to be turned
over in good condition.
9. Space to be broom swept and free of debris and trash.
10. Demolish all kitchen equipment and pipes, plumbing, fire suppression,
and electric serving the kitchen equipment, and patch any holes in wall,
floor, ceiling, and roof.
11. Remove all mirrors and repair walls as required.
Ex6-1
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EXHIBIT "C"
SIRLIN LESSER&BENSON,P.C.
A PROFESSIONAL CORPORATION
• ATTORNEYS AT LAW
JON C SIRLIN PENNSYLVANIA OFFICE
PETER A.LESSER* 123 S.BROAD STREET
JOHN D.BENSON* SUITE 2100
SUSAN J.KUPERSMITH* PHILADELPHIA,PA 19109
DANA S.PLOW (215)864.9700
DOROTHYANNE HAMILL* FAX(215)864-9669
LISA M.RUTENBERG**
JERRY I DREW NEW JERSEY OFFICE
PATRICK J.TROY 102 BROWNING LANE
KIERSTIN M.LANGE*
BUILDING C
ADAM NACHMANI* CHERRY HILL,NJ 08003
NICHOLAS C.CAMPELLONE* (856)616-1900
FAX(856)216-7459
Lamm,L February 7,2013
PA&NJBAR
••PA.NJ&MD
PERSONAL&CONFIDENTIAL
Bi Chen d/b/a Great Wall Buffet
Stonehedge Shopping Center
950 Walnut Bottom Road
Carlisle,PA 17013
Re: PR Stonehedge Square LP—Bi Chen d/b/a Great Wall Buffet
DEFAULT NOTICE—Stonehedge Shopping Center
Our File No. 19366
Dear Mr. Chen:
Please be advised of our representation of your Landlord at the Stonehedge Shopping
Center. I have been advised by my client that you are in default of the Lease dated June 6,2001 for
failing to pay rent and proper charges through the date hereof in the amount of$11,940.96 which
includes legal fees in the current amount of$750.00.
This letter will serve as formal notice of default pursuant to Section 23.01(a) of the Lease.
Unless the arrearage is paid in full within five (5) days from the date of this letter, I have been
instructed to commence appropriate legal action against you for past due charges,possession of the
premises, additional attorney's fees, late fees,interest and accelerated rent through the remainder of
the lease term without further notice or delay.
SIRLIN LESSER&BENSON,P.C.
Please avoid the expense and inconvenience of litigation and execution by making
immediate payment and by contacting me to discuss this matter.
Sincerely,
PETER A. LESSER
PAL/dp
Via Certified and Regular Mall
cc:Alexis H. Goodyear
EXHIBIT 2
034' 6'
PR Stonehedge Square LP : IN THE COURT OF COMMON PLEAS OF
By Its Agent: Vastgood 7 Property : CUMBERLAND COUNTY, PENNSYLVANIA
Portfolio Mgmt, LLC
•
44 South Bayles Avenue
•
Port Washington,NY 11050
: CIVIL ACTION-LAW
v.
•
Bi Chen d/b/a Great Wall Buffet firn 'ri
Stonehedge Shopping Center :NO. 2013-2933 CIVIL TERIl2
950 Walnut Bottom Road
Carlisle, PA 17013 : r. c.
Cs yr.
•
b
.g-
ANSWER TO PLAINTIFF'S COMPLAINT
The Defendant, Hui Juan Dong, sister of Bi Chen, by and through her attorneys, Turo
Robinson, hereby responds to Plaintiffs Complaint and states the following:
COUNT I: BREACH OF CONTRACT
1. Admitted.
2. Admitted in part and denied in part. Defendant Hui Juan Dong (hereinafter "Ms. Dong"),
sister of Bi Chen, has been responsible for operating Great Wall Buffet located at 950 Walnut
Bottom Road, Carlisle, PA 17013 and making all lease payments to Plaintiff since 2005, a fact
that should be known to Plaintiff
3. Admitted.
4. Admitted.
5. Denied. By way further answer, Ms. Dong repeatedly attempted to contact Plaintiff after
the ten(10) year lease expired on March 31, 2012 and continued to attempt to contact Plaintiff
regularly for a period of months. In spite of hearing nothing whatsoever from Plaintiff regarding
the renewal of the lease terms, Ms. Dong continued to pay the full rental amount of$5,342.74
plus common area maintenance charges and real estate taxes through November 2012, when she
was required to reduce her monthly rental payments to $4,500 because the restaurant's business
was slow.
(a) Ms. Dong is without sufficient knowledge or information to form a belief about the
truth of the allegation.
(b) Ms. Dong is without sufficient knowledge or information to form a belief about the
truth of the allegation.
6. This is a legal conclusion to which no response is required. If it is deemed otherwise,this
averment is denied..
7. Admitted.
8. Ms. Dong is without sufficient knowledge or information to form a belief about the truth
of the allegation.
WHEREFORE, Ms. Dong respectfully requests that this Honorable Court find in favor of
Defendant and against Plaintiff and deny the relief requested.
COUNT II: EJECTMENT
9. No response is required.
10. No response is required.
WHEREFORE, Ms. Dong respectfully requests that this Honorable Court find in favor of
Defendant and against Plaintiff and deny the relief requested.
Respectfully submitted,
TURO ROBINSON
Attorneys at Law
Date Daniel L. Puskar, Esquire
Supreme Ct.No. 311444
129 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Defendant
VERIFICATION
I verify that the statements made in the foregoing Complaint for Custody are true and
correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.
§4904 relating to unsworn falsification to authorities.
V5 .44 --kAcAvi
Date Hui Juan Dong
•
PR Stonehedge Square LP : IN THE COURT OF COMMON PLEAS OF
By Its Agent: Vastgood 7 Property : CUMBERLAND COUNTY, PENNSYLVANIA
Portfolio Mgmt, LLC
44 South Bayles Avenue •
Port Washington,NY 11050 •
: CIVIL ACTION—LAW
v.
•
Bi Chen d/b/a Great Wall Buffet •
Stonehedge Shopping Center : NO. 2013-2933 CIVIL TERM
950 Walnut Bottom Road
Carlisle, PA 17013 •
•
•
CERTIFICATE OF SERVICE
I hereby certify that on this day I served a true and correct copy of the foregoing Answer
on Peter A. Lesser, Esquire, by depositing same in the United States Mail, first class,postage
pre-paid, from Carlisle, Pennsylvania, addressed as follows:
Peter A. Lesser, Esquire
123 South Broad Street, Suite 2100
Philadelphia, PA 19109
TURO ROBINSON
Attorneys at Law
b' 113
Date Daniel L. Puskar, Esquire
Supreme Ct.No. 311444
129 South Pitt Street
Carlisle, PA 17013
(717) 245-9688
Attorney for Defendant
a
EXHIBIT 3
PR Stonehedge Square LP : IN THE COURT OF COMMON PLEAS OF
By Its Agent:Vastgood 7 Property : CUMBERLAND COUNTY, PENNSYLVANIA
Portfolio Mgmt, LLC c> _
44 South Bayles Avenue
Port Washington,NY 11050 r
cz
: CIVIL ACTION—LAW == '- -o
V. -C
•
Bi Chen d/b/a Great Wall Buffet •
Stonehedge Shopping Center :NO.2013-2933 CIVIL TEI
950 Walnut Bottom Road _-
Carlisle,PA 17013
•
ANSWER TO PLAINTIFF'S COMPLAINT
The Defendant,Bi Chen d/b/a Great Wall Buffet, by and through her attorneys, Turo
Robinson,hereby responds to Plaintiffs Complaint and states the following:
COUNT I: BREACH OF CONTRACT
I. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied. By way further answer,Defendant repeatedly attempted to contact Plaintiff after
the ten(10)year lease expired on March 31,2012 and continued to attempt to contact Plaintiff
regularly for a period of months. In spite of hearing nothing whatsoever from Plaintiff regarding
the renewal of the lease terms,Defendant continued to pay the full rental amount of$5,342.74
plus common area maintenance charges and real estate taxes through November 2012,when she
was required to reduce her monthly rental payments to $4,500 because the restaurant's business
was slow.
. . . . . ... .. ....._
(a) Defendant is without sufficient knowledge or information to form a belief about the
ti
truth of the allegation.
(b) Defendant is without sufficient knowledge or information to form a belief about the
truth of the allegation.
6. This is a legal conclusion to which no response is required. If it is deemed otherwise,this
averment is denied..
7. Admitted.
8, Defendant is without sufficient knowledge or information to form a belief about the truth
of the allegation.
WHEREFORE,Defendant respectfully requests that this Honorable Court find in favor
of Defendant and against Plaintiff and deny the relief requested.
ti
COUNT II: EJECTMENT
9. No response is required.
10. No response is required.
WHEREFORE, Defendant respectfully requests that this Honorable Court find in favor
of Defendant and against Plaintiff and deny the relief requested.
Respectfully submitted,
TURO ROBINSON
Attorneys at Law
Date Daniel L. Puskar, Esquire
Supreme Ct.No. 311444
129 South Pitt Street
Carlisle, PA 17013
(717)245-9688
Attorney for Defendant
PR Stonehedge Square LP : IN THE COURT OF COMMON PLEAS OF
By Its Agent:Vastgood 7 Property : CUMBERLAND COUNTY, PENNSYLVANIA
Portfolio Mgmt,LLC
44 South Bayles Avenue •
Port Washington,NY 11050 •
: CIVIL ACTION—LAW
v.
•
Bi Chen d/b/a Great Wall Buffet •
Stonehedge Shopping Center :NO. 2013-2933 CIVIL TERM
950 Walnut Bottom Road
Carlisle,PA 17013
•
CERTIFICATE OF SERVICE
I hereby certify that on this day I served a true and correct copy of the foregoing Answer
on Peter A. Lesser,Esquire,by depositing same in the United States Mail,first class,postage
pre-paid, from Carlisle,Pennsylvania,addressed as follows:
Peter A. Lesser,Esquire
123 South Broad Street, Suite 2100
Philadelphia,PA 19109
TURO ROBINSON
Attorneys at Law
12 7 /5
Date Daniel L. Puskar,Esquire
Supreme Ct.No. 311444
129 South Pitt Street
Carlisle,PA 17013
(717)245-9688
Attorney for Defendant
I
VERIFICATION
I verify that the statements made in the foregoing Complaint for Custody are true and
correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.
§4904 relating to unsworn falsification to authorities.
' //
1--) I
C/ -
Date B Chen
L, l 1
SIRLIN LESSER&BENSON,P.C.
123 South Broad Street, Suite 2100 2j13 NOV -7 PH 1: 59
Philadelphia,PA 19109
(215)864-9700 CUMBERLAND COUN I'y'
By: Peter A. Lesser,Esquire PENNSYLVANIA
Identification No. 59433 Attorneys for Plaintiff
PR STONEHEDGE SQUARE LP • COURT OF COMMON PLEAS
By Its Agent: Vastgood 7 Property • CUMBERLAND COUNTY
Portfolio Mgmt, LLC
44 South Bayles Avenue
Port Washington, NY 11050-3765
v. ;
BI CHEN d/b/a GREAT WALL BUFFET : NO. 13-2933
Stonehedge Shopping Center
•
950 Walnut Bottom Road
Carlisle, PA 17013
PRAECIPE TO DISMISS
TO THE PROTHONOTARY:
Kindly mark the above captioned matter Dismissed without Prejudice upon payment of
your costs only.
SIRLIN LESSER&BENSON, P.C.
BY: �` _-
PETER A. LESSER, ESQUIRE
Attorney for Plaintiff