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Home My WebLink About04-6100 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, P A 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON F'LEAS CUMBERLAND COUNTY OF PENNSYL VANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC CIVIL ACTION - LAW NO. I'I/~ {p/OO ~ Plaintiff, v. W A TCHUNG INTERNATIONAL LLC, Defendant. ENTRY OF APPEARANCE; PRAECIPE FOR ASSESSMENT OF DAMAGES AND CONFESSION OF JUDGMENT Kindly enter our appearance for and on behalf of the Defendant above named. Pursuant to the authority contained in the warrant of attorney appearing in the Lease (as defined in and attached to the Complaint in Confession of Judgment for Money filed in this action), I hereby appear for the above-named Defendant in this matter, and confess judgment as authorized, in favor of the Plaintiff and against the Defendant, as follows: [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] PHI\12210918 Unpaid rent Common Area Maintenance Insurance Tax Attorneys' Fees Additional Costs and Fees TOTAL Dated: December 2, 2004 PH1\122l091.8 $27,614.92 $ 1,052.30 $ 587.?6 $ 4,729.42 To Be Determined To Be Determined $33,984.40 subject to additional charges for attorneys' fees, and other costs, fees, and accruing interest. DUANE MORRIS LLP By: B~~ Rasheena Harris, Esquire 4200 One Liberty Place Philadelphia" P A 19103 215.979.1561 Attorneys fOIr Plaintiff Inland Southeast Carlisle DST o c.~ -;"-i- I'-..l c:::.') C:;'::") ..z:- C:::f rq CJ I (:r. o - ~", -I ~r -n rn-. f~" . -CJ!q ~';J C:,l -n. :3...: r~~) (.) DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, P A 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY OF PENNSYL VANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC CIVIL ACTION - LAW NO. CJ~ ~ t~/tltJ {'uJ Plaintiff, v. W ATCHUNG INTERNATIONAL LLC, Defendant. COMPLAINT IN CONFESSION OF JUDGM:ENT FOR MONEY Plaintiff, Inland Southeast Carlisle DST, a Delaware statutory trust, by Inland Retail Real Estate Trust, Inc., a Maryland corporation, its signatory Trustet:, ("Inland"), by and through their attorneys, Duane Morris LLP, files this Complaint for judgment by confession pursuant to Pennsylvania Rules of Civil Procedure 2950-2956 and, in support hereof, states as follows: 1. Inland is a Delaware statutory trust having a principal place of business at 2901 Butterfield Road, Oak Brook, Illinois 60148. PHI \1221091.8 12/2/04 2. Defendant, Watchung International LLC, d/b/a Dollar Goodies, is a New York limited liability company with a last known address of 11 E. Broadway, Suite 6C, New York, NY 10038. 3. On or about August 8, 2003, MJ. Community Center, LLC (the "Original Landlord") and Defendant entered into a certain Carlisle Commons Lease dated August 8, 2003 (the "Lease"), thereby demising and leasing to Defendant real property located at 40 Noble Boulevard, Suite 40, Carlisle, P A 17013, being that portion of a shopping center building known as Carlisle Commons ("Carlisle Commons"), as more particularly described as follows and in the Lease (the "Demised Premises"): Situate in the Carlisle Commons (hereinafter referred to as the "Shopping Center") located on Near the Intersection of 81 and Hanover Street, in the City of Carlisle, County of Cumberland, and State ofPennsylvllLnia, being that portion of the Shopping Center building known as Carlisle Commons and numbered as Unit 600, and having irregular dimensions containing approximately Two Thousand Seven Hundred Fifty (2,750) square feet of ground floor level store space. A true and correct copy of the Lease is attached hereto and incorporated herein by reference as Exhibit "A." 4. Under the terms of the Lease, the lease te:rm was for a period offive (5) years to commence September 15, 2003 or on the date Defendant opened for business, whichever occurred first. The minimum annual rent was Thirty-Four Thousand Seven Hundred Sixty Dollars ($34,760.00), payable in twelve equal monthly installments of Two Thousand Eight Hundred Ninety-Six Dollars and Sixty-Seven Cents ($2,896.67) (the "Minimum Rent"). In addition to the Minimum Rent, Defendant agreed to pay Original Landlord percentage rent in an amount equal to four percent (4%) of annual gross sales in eXCE:SS of Five Hundred Seventy-Nine Thousand Three Hundred Thirty-Three Dollars and Thirty-Three Cents ($579,333.333), with exception (the "Percentage Rent"). See Lease, art. 4. PHl\122109\.8 2 5. Under article 7 of the Lease, Defendant agreed to pay to Inland the Defendant's portion of taxes ("Taxes"), representing a function of the total square footage of the Demised Premises divided by the total square footage of Carl is lie Commons (as defined in the Lease) . 6. Under article 8 of the Lease, Defendant contracted to pay a common area maintenance fee ("Common Area Maintenance"), the common areas being defined to include parking areas, driveways, sidewalks, public rest rooms, and the like. The agreed upon Common Area Maintenance was Thirty-Nine Cents ($.39) per square foot of the Demised Premises. 7. Under article 17 of the Lease, Defendant agreed to pay the Defendant's portion of insurance ("Insurance"), following the formula set forth for the payment of Taxes, and not in an amount less than an annual amount equal to Twenty-Two Cents ($.22) per square foot of the Demised Premises. 8. Under the Lease, Defendant agreed to keep the Demised Premises continuously and uninterruptedly opened for business, and not to abandon or leave the Demised Premises vacant. See Lease, art. 24. 9. In consideration for, and as an inducement for Original Landlord to enter into the Lease, Zhong Y. Wang ("Guarantor") executed that certain Guaranty dated August 8, 2003 (the "Guaranty") in which Guarantor guaranteed, inter alia, payment of the Minimum Rent, additional rent, and other terms and conditions under the Lease. Pursuant to the Guaranty, Guarantor expressly waived any notice of default, non-payment, and non-performance. A true and correct copy of the Guaranty is attached hereto and is incorporated herein by reference as Exhibit "B." PHl\1221091.8 3 10. Furthermore, the Guaranty expressly provides that the Original Landlord may proceed against the Guarantor separately or jointly, before, after, or simultaneously with proceeding against the Defendant. 11. By that certain Assignment of Leases and Security Deposits dated September 2,2003 (the "Assignment"), Inland purchased the Demised Premises from Original Landlord, along with the Lease, including all rents due or to become due, attendant to the Demised Premises. Inland is successor-in-interest to Original Landlord by virtue of the Assignment, and Inland became successor to all rights and interests under the Lease. A true and correct copy of the Assignment is attached hereto and is incorporated herein by reference as Exhibit "D." 12. Defendant made payments through December 2003. The last payment received by Inland under the Lease was dated December 16, 2003, in the amount of $2,896.67 (check number 1009). 13. By letter dated February 23, 2004 (the "February 23rd Letter"), Inland notified Defendant of the defaults under the Lease. As of the date of the February 23rd Letter, the Defendant was in rental arrears in the amount of $13 ,281.18, excluding late fees and other charges. The February 23rd Letter notifying the Defendant of default was delivered by certified mail on March 2,2004. A true and correct copy of the February 23rd Letter is attached hereto and is incorporated herein by reference as Exhibit "c." 14. On or around April 2004, the Defendant abandoned and vacated the Demised Premises, in violation of Defendant's obligation under the Lease to continuously and uninterruptedly open for business and to not abandon the Demised Premises. PHl\1221091.8 4 15. Defaults have occurred and are continuing under the Lease as a result of, inter alia, the Defendant's failure to make payments when due and payable under the Lease, and failure to stay continuously and uninterruptedly opened for busi.ness. 16. The terms of the Lease contain a warrant of attorney authorizing an attorney for Inland, as landlord, to confess judgment for possession of the Demised Premises and for monetary damages against the Defendant upon the occurrence and continuance of a Default (as defined in the Lease). See Lease at 31. 17. Pursuant to the Lease, Inland is also entitled to recover from the Defendant costs of suit and actual collection costs, including reasonable attorneys' fees. 18. As of August 1, 2004, the amounts due and owing by Defendant to Inland pursuant to the Lease (the "Amount Due") were as follows: Unpaid rent Common Area Maintenance Insurance Tax Attorneys' Fees Additional Costs and Fees $27,614.92 $ 1,052.30 $ 587.76 $ 4,729.42 To Be Determined To Be Determined TOTAL $33,984.40 subject to additional charges for attorneys' fees, and other costs, fees, and accruing interest. 19. Notwithstanding the obligations of the Defendant under the Lease, the Defendant has not made payment to Inland or otherwise cured the Defaults (as defined in the Lease) . 20. The Lease has not been assigned by Inland, Inland's claim against the Defendant is not based upon a residential mortgage, and Act 6 does not apply. PH1\1221091.8 5 21. No judgment has been entered on the Lease, or on the Guaranty, in any jurisdiction. 22. The confession of judgment appearing in the Lease is less then twenty (20) years old. 23. The confession of judgment appearing in the Lease authorizes any attorney to appear for and confess judgment against the Defendant in any court of record in the Commonwealth of Pennsylvania or elsewhere. 24. Judgment for monetary damages in favor of Inland and against the Defendant is demanded as authorized by the confession of judgment provisions contained in the Lease. 25. Judgment for monetary damages in favor of Inland and against the Defendant is not being entered against a natural person in connection with a consumer credit transaction. 26. Jurisdiction and venue are proper because the leased premises which is the subject of this Complaint is located in Cumberland County and the Defendant regularly conducts business in, and the cause of action arose in, Cumberland County. Furthermore, under the provisions of the Lease, causes of action arising out of the Lease may take place in Pennsylvania. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] PHl\122109J.8 6 WHEREFORE, Plaintiff, Inland Southeast Carlisle DST, a Delaware statutory trust, by Inland Retail Real Estate Trust, Inc., a Maryland corporation, its signatory Trustee, hereby demands that judgment by confession in the amount of $33,984.40 plus costs, legal fees, and interest until the date of payment, be entered in its favor and against Defendant, Watchung International LLC, d/b/a Dollar Goodies, and requests such other and further relief as this Court may deem proper. DUANE MORRIS LLP By: G?~~~ Rasheena Harris, Esquire 4200 One Liberty Place Philadelphia, P A 19103 215.979.156 L Attorneys for Plaintiff Inland Southeast Carlisle DST Dated: December 2, 2004 PHl\1221091.8 7 L (1 (~ 1"0,. -~ "'-, 25 ...- C'1 [0-1 -: C-> 1 G\ o .1 ~1~ r:~~ 0--' r-;-~ ~j J C) (.:_~ '':') I ")) ) Cil'n ,~: t .,,) (.) .,1 ~--< DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, PA 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON l~LEAS CUMBERLAND COUNTY OF PENNSYL VANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to MJ. Community Center, LLC CIVIL ACTION - LAW NO. Plaintiff, v. W A TCHUNG INTERNATIONAL LLC, Defendant. ENTRY OF JUDGMENT BY CONFESSION AND PRAECIPE FOR ASSESSMENT OF DAMAGES Pursuant to the Complaint in Confession of Judgment for Money filed in the within action and the Warrant of Attorney attached thereto, judgment is hereby entered against Defendant, Watchung International LLC, d/b/a Dollar Goodies. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] PHl\1221091.8 12/2/04 Unpaid rent Common Area Maintenance Insurance Tax Attorneys' Fees Additional Costs and Fees TOTAL Dated: December 2, 2004 PHI \1221091.8 $27,614.92 $ 1,052.30 $ 587.76 $ 4,729.42 To Be Determined To Be Determined $33,984.40 subject to additional charges for attorneys' fees, and other costs, fees, and accruing interest. DUANE MORRIS LLP By: (j{~~ Rasheena Harris, Esquire 4200 One Liberty Place Philadelphia, P A 19103 215.979.156l Attorneys for Plaintiff Inland Southeast Carlisle DST ./ /.' .,J,. .?' ~ I~/ l.~~.' ~ Prothonotary /~y ] 2/2/04 ..,f.... ". ~ ~J.' l~ Co ,,- ~,-;; !--.:l ~) ~ J.. ..,) -', Cl r'\' \ ("--) ! en (') -n :-J 1 -"', inj"";. I-n 4(-1) "- -i ~~~) .l~ ;1 -(J N I'-") (l ;l c.."' DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, P A 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY OF PENNSYL VANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to MJ. Community Center, LLC CIVIL ACTION -LAW NO. Plaintiff, v. W A TCHUNG INTERNATIONAL LLC, Defendant. ENTRY OF APPEARANCE~ TO THE PROTHONOTARY: Kindly enter our appearance as attorneys for Plaintiff, Inland Southeast Carlisle DST, successor-in-interest to M.J. Community Center, LLC in the above-entitled matter. DUANE MORRIS LLP By: G~~~~ Rasheena Harris, Esquire 4200 One Liberty Place Philadelphia, P A 19103 215.979.1561 Attorneys for Plaintiff Inland Southeast Carlisle DST Dated: December 2, 2004 PH1\1221091.8 (') ......., C t:':::,") C' = -...' , ...r:- -n C:! "".1 ...~_. . CO) / 1 (.i~ :~? _.1:...,. N =~ C..' ~~I DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, P A 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY OF PENNSYLVANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC CIVIL ACTION -LAW NO. Plaintiff, v. W ATCHUNG INTERNATIONAL LLC, Defendant. CERTIFICATION OF ADDRI~SS Rasheena Harris, Esquire, certifies, to the best of her knowledge, information and belief, that the address of Plaintiff, Inland Southeast Carlisle DST, is 2901 Butterfield Road, Oak Brook, Illinois 60148 and the last known address of the Defendant, Watchung International LLC, d/b/a Dollar Goodies, is 11 E. Broadway, Suite 6C, New York, NY 10038. DUANE MORRIS LLP By: G?~~ Rasheena Harris, Esquire 4200 One Liberty Place Philadelphia, P A 19103 215.979.1561 Attorneys for Plaintiff Inland Southt:ast Carlisle DST Dated: December 2, 2004 PH1\1221091.8 12/2/04 r:."") '" roO. c;'.-::l 0 ~:::: <-~ ..J::"" -0 1\-: CJ L1' Pl ,-) I C.", ~-j , '" 2 I'~,) ~ '., -~j ! -.:.' C0 ~~.... ..~l DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, P A 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON l~LEAS CUMBERLAND COUNTY OF PENNSYLVANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to MJ. Community Center, LLC CIVIL ACTION - LAW NO. Plaintiff, v. W ATCHUNG INTERNATIONAL LLC, Defendant. NOTICE A JUDGMENT HAS BEEN ENTERED AGAINST YOU BY CONFESSION OF JUDGMENT. PURSUANT TO 42 PA. C.S.A. ~ 2737.1, IF YOU WERE INCORRECTLY IDENTIFIED AS A DEFENDANT IN THE COMPLAINT IN CONFESSION OF JUDGMENT YOU MAY BE ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS DETERMINED BY THE COURT. YOU MA Y TAKE ACTION TO STRIKE THE JUDGMENT BY FOLLOWING THE PROCEDURE IN RULE 2959 WHICH IS AS FOLLOWS: Pennsylvania Rule of Civil Procedure 2959 - Striking Off Judgm.ent. (a) (1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted by a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment. PH 1\1221091.8 (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense and (ii) as provided by Pennsylvania Rule of Civil Procedure 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.1 (c )(2) or Rule 2973.1 ( c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be filed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. ( e) The court shall dispose of the rule and answer and on testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. (f) The lien of judgment or any levy or attachment shall be preserved while the proceedings to strike off or open the judgment is pending. If you have any questions concerning the Confession of Judgment, please call Rasheena Harris, Esquire at (215) 979-1561. L-;t.' ~ /5/ ,. ~~7 PROTHONOTARY /;? PHI\1221091.8 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, PA 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON If>>LEAS CUMBERLAND COUNTY OF PENNSYL VANIA CIVIL ACTION - LAW INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC NO. Plaintiff, v. WATCHUNG INTERNATIONAL LLC, Defendant. AFFIDA VIT STATE OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND Laura Sabatino, being duly sworn according to law, deposes and says that she is a Senior Vice President of Inland Mid-Atlantic Management Corp., Managing Agent for Plaintiff, Inland Southeast Carlisle DST; that she is authorized to make this affidavit on behalf of the Plaintiff; that the facts set forth in the Complaint in Confession of Judgm~nt In Ejectment and for Money are true and correct to the best of her knowledge, information and belief; and that the Exhibits attached to the Complaint in Confession of Judgment In Ejectment and for Money are true and correct copies of the originals executed by the Defendant. \\\""S"'8""" ,\ e\ rq " ~' 'l>-'<. ............ tz, '~ .:-- ,OJ ..- ....., ~ " ttr .- -. ~ ' ~~ l ~otary .\ ;. -- . . - = : .....--- : 0 = = ~~ :< = -; ~.... PUb'\\c,/ ~' E ., (')L -.. ..- ~ ~ " 'T/(9 ............ ':\).,. ~ Swom}J:f.ancJ ~'tibed Before fUl:''th''tlS''t1ay of N 0v'fJ'f\bu;2004. 1\~ 1l1-:I'S~",--- No~PUb IC PHI \1221091.7 My Commission Expires 6/29/08 Inland Mid-Atlantic Management Corp., M~:I~ ruand Southeast Carlisle DST By: aura Sabatmo Senior Vice Pn~sident 10/13/04 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, PA 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON JPLEAS CUMBERLAND COUNTY OF PENNSYL VANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC Plaintiff, v. W ATCHUNG INTERNATIONAL LLC, Defendant. CIVil. ACTION - LAW NO. AFFIDAVIT OF INCOME STATE OF PENNSYLVANIA COUNTY OF CUMBERLAND SS. Laura Sabatino, being duly sworn according to law, deposes and says that she is a Senior Vice President of Inland Mid-Atlantic Management Corp., Managing Agent for Plaintiff, Inland Southeast Carlisle DST; that she is authorized to make this affidlavit on behalf of the Plaintiff; that to the best of her knowledge, information and belief, the in<:ome of the Defendant is in excess ~f\$.\",09~,!'er year. "" e\ S Brq I" " ~ ............ /Iv ^ ""'" ~ ()j .- .. ~ /(i) , ~ ....... ... ... "'" ~ ~ ~... _\.otary ... -:. _ c::: : ,-- .- - . . - = : ......... : 0 = ~ ~ .c .:z:: -:. ~ ... Pup\\ .~,- ~ , 6\0 -. .. ~ ~ '" z ... .. ~ " '" T/S .......... V " """ I]burg GO,," Sworn t~~tI~Ut~c~bed Before Me This JS:.i1ay of N D\j\pllf\~ (, 2004. ~i~~ ~rv Commission Expires 6/29/08 PHI \1221091.7 10113/04 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, PA 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON JPLEAS CUMBERLAND COUNTY OF PENNSYL VANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to MJ. Community Center, LLC CIVIl, ACTION - LAW NO. Plaintiff, v. WATCHUNG INTERNATIONAL LLC, Defendant. AFFIDAVIT OF NONAPPLICABILITY OF GOODS AND SERVICES INSTALLMENT SALES ACT STATE OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND Laura Sabatino, being duly sworn according to law, deposes and says that she is a Senior Vice President of Inland Mid-Atlantic Management Corp., Managing Agent for Plaintiff, Inland Southeast Carlisle DST; that she is authorized to make this affidlavit on behalf of Plaintiff; that the Confession of Judgment does not arise out of a retail installment sale, contract or account, as defined under the Goods and Services Installment Sales Act, 69 P.S. S 1101, et seq.; PHI \1221091.7 10/13/04 and that WAtinr~oing facts are true and correct to the best of her knowledge, information and belip.."\\~et S 8r "" ,~~'(). ........ ctty" ~ ".... ......, ~ ~ ~rc- ..- -.. <s>-:. :: "" l ~otarl... -.."'"" =. _. .J'. """ - : ~..... : - ;;~ :()= -:. <.\l \ ,oLJb\\C .: <' ::: ~ OL -.. ..- -..:: ~ 7/; .... .... ~ ~ " ~/)6 ....... v.~ " "II LJrg CO \", """"',,\\ By: Laura Sabatino Senior Vice President Sworn to and Su~~bed Before Me This 1L. ~ay of f{Mf:I\bv\ ,2004. ~~1S,~ Nota~Ubhc My Commission Expires 6/29fOf, PH1\1221091.7 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, P A 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON JPLEAS CUMBERLAND COUNTY OF PENNSYL VANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC CIVIL ACTION - LAW NO. Plaintiff, v. WATCHUNG INTERNATIONAL LLC, Defendant. AFFIDAVIT OF BUSINESS TRANSACTION STATE OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND Laura Sabatino, being duly sworn according to law, deposes and says that she is a Senior Vice President of Inland Mid-Atlantic Management Corp., Managing Agent for Plaintiff, Inland Southeast Carlisle DST; that she is authorized to make this affidavit on behalf of the Plaintiff; and that, to the best of her knowledge, information and belief, the transaction upon which the judgm~'*!~~~ered is based was a business transaction. ", ~ at 8r. '" " Cbf(:} ........... Ci it" 4'.., l ~ ...... ...... ~t\) ~ Inland Mid-Atlantic Management Corp., g ~! ~otary \ - ~ M aging Agent fo~arliSle DST . _e_ . - C~ =;i :0= ___, ~ t\)"" Pub\\C .: <- ~ By' ~ (l -. ..- .."'" . " 1% '. .' ~ ~ L S b . " &,., ............ v(:- ...' aura a atmo ,,'ibu GO " .. . "II, rg \\\" Semor VIce Pn~sIdent 'IIL')..)\ . Sworn to ana :subsc~jped Before Me This 1.5 fray of ~tf~~f, 2004. ~~. \hw-~- ,~" Commission Expires 6/29/08 PH1\122109L7 10/13/04 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, PA 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY OF PENNSYLVANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC CIVIL ACTION - LAW NO. Plaintiff, v. W ATCHUNG INTERNATIONAL LLC, Defendant. AFFIDAVIT OF DEFAUL1[ STATE OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND Laura Sabatino, being duly sworn according to law, deposes and says that she is a Senior Vice President of Inland Mid-Atlantic Management Corp., Managing Agent for Plaintiff, Inland Southeast Carlisle DST; that she is authorized to make this affidavit on behalf of Plaintiff; that the Defendant, Watchung International LLC, executed the Lease (as defined in the Complaint in Confession of Judgment in Ejectment and for Money filed in the within action), a true and correct CQt)~ nf,which is attached to the Complaint; that the Defendant is in default under the \""'S II" Lea~~\ e\ Brq ", ~ q} ............. tz" /) ~ ~ ......0) ..- -.. (9 ~ ~ ~l.. ~otary ...~""" ~ -<. ,-- .- = : ....... : 0 = . . - =-?~ . ::<: ~ '::=- .. Pub\\c.. ... ~ <S>" .... .... ~...~ , L:../ -. .- ^- , " '1/& .......... ~",'" "'" '/)6urg GO,,'" ",,,,..,,,,\ aura Sabatino Senior Vice Pn~sident Sworn to and Sub~b~d Before Me This \~ lJay of N O\JeJ'(I.kr,2004. ~c~~ PHl\1221091.7 My Commission Expires 6/~9/n~ 10113/04 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, PA 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY OF PENNSYLVANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC CIVIL ACTION - LAW NO. Plaintiff, v. WATCHUNG INTERNATIONAL LLC, Defendant. AFFIDAVIT OF NON-MILITARY SERVICE STATE OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND Laura Sabatino, being duly sworn according to law, deposes and says that she is a Senior Vice President of Inland Mid-Atlantic Management Corp., Managing Agent for Plaintiff, Inland Southeast Carlisle DST; that she is authorized to make this affidavit on behalf of the Plaintiff; and that to the best of her knowledge, information and belief, the Defendant is not in the Military Service o~4ht'lI~d States, nor any State or Territory hereof, nor any of its allies, as defined in the S~~;.~,)' Civil Relief Act of 1940 and the amendments thereto. ~ ,Q) ..-- .... ? ~ ~ q,. .- .. t\) -:. ~ ~! ~otar'y \. """ -: Inland Mid-Atlantic Management Corp., ; \ _.~ J () E M aging Agent Dl! Inrelarlisle DST -;. ~.. Pub\\c .' <' ~ (....., ~ ('li'" ... ~'~ B ~ '-', /($) .............. \).<::- ,~ y: '",;burg Co,,," Laura Sabatino ~ """",,\ " . Semor V Ice PfI~sldent Sworn to and SubscRbed Before Me This lS.'t5ay ~r.2004. ctS.~ Nota Public tv1y Commission Expire>" f)/?q'r:w PHI \1221091.7 10/13104 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, P A 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY OF PENNSYLVANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to MJ. Community Center, LLC CIVIL ACTION - LAW NO. Plaintiff, v. WATCHUNG INTERNATIONAL LLC, Defendant. VERIFICATION I, Laura Sabatino, hereby state that I am a Senior Vice President of Inland Mid-Atlantic Management Corp., Managing Agent for Plaintiff, Inland Southeast Carlisle DST, and verify that the statements made in the foregoing Complaint in Confession of Judgment in Ejectment and for Money are true and correct to the best of my knowledge, information and belief. I understand that the statements made therein are made subject to penalties of 18 Pa. C.S. ~ 4904 relating to unsworn falsification to authorities. Inland Mid-Atlantic Management Corp., M aging AgQ:)r nland So theast Carlisle DST By: Laura Sabatmo Senior Vice President PHI \1221091.7 10/13/04 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, P A 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON JPLEAS CUMBERLAND COUNTY OF PENNSYL VANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC CIVIl, ACTION - LAW NO. t'7'1~ (PItt) CuvJ Plaintiff, v. W ATCHUNG INTERNATIONAL LLC, Defendant. VERIFICATION I, Rasheena Harris, Esquire, an attorney with the law firm of Duane Morris LLP, hereby certify that the statements made in the foregoing Complaint in Confession of Judgment for Money are true and correct to the best of my knowledge, infornlation and belief. I understand that the statements therein are made subject to the penalties of 18 Pa. C.S. ~ 4904 relating to unsworn falsification to authorities. {f~~ Rasheena Harris, Esquire PH1\1221091.8 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, PA 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON ]~LEAS CUMBERLAND COUNTY OF PENNSYLVANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC CIVIL ACTION - LAW NO. tJ'I"~/tO ~ Plaintiff, v. WATCHUNG INTERNATIONAL LLC, Defendant. AFFIDAVIT OF AMOUNT DUE STATE OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND Laura Sabatino, being duly sworn according to law, deposes and says that she is a Senior Vice President of Inland Mid-Atlantic Management Corp., Managing Agent for Plaintiff, Inland Southeast Carlisle DST; that she is authorized to make this affidavit on behalf of Plaintiff; and that as of August 1, 2004 there is $33,984.40 plus costs, legal f(;:es, late charges and interest until the date of payment due and owing pursuant to the Lease (as defined in the Complaint in Confession of Judgment in Ejectment and for Money filed in this action), which sum represents PHI \1221091.7 10/13/04 the actual ~~ owed to Plaintiff for which Defendant, Watchung International LLC failed to pay to nM)~Sf "'ftJAuired under the Lease. ...""' 'e;\: IA ., " ",,-' .......... '1/ ^ " " ,..:.,.v..- -.. "/(9 , ,,:. ,"VJ.- e.. "'" ~ ... ..... . t ., _~'v: _'0 ary .. ' - : ~ .... - . . .- = : ~.-- : 0 : - . .~- ... ~ C .co.... -:. ~ ... Pu"'X\ l~. :: '<9- ~ .~, ~ 0 L..... ....,/' (:0 ~ '",~;: ........ 0"::> ~ ",,:fJburg V \\\" "'"111\\\\ Sworn to and Subscribed Before Me This 15- ~ay of AI()~ ( ,2004. ~~5i~ Nb~uDlrc 1~lS,;n' ~',:iv Commission LYI"'II'f'1'l t'I . . PH1\1221091.7 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, P A 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON ]['LEAS CUMBERLAND COUNTY OF PENNSYLVANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC CIVIL ACTION - LAW NO. (}II- f//tJ{) ~ Plaintiff, v. W ATCHUNG INTERNATIONAL LLC, Defendant. PETITION TO STRIKE JUDGMENT REQUEST FOR PROMPT HEARING I certify that I did not voluntarily, intelligently and knowingly give up my right to notice and hearing prior to the entry of judgment. I petition the court to strike the judgment on this ground and request a prompt hearing on this issue. I verify that the statements made in this Request for Hearing 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. Notice of the hearing should be given to me at: Watchung International LLC 11 E. Broadway, Suite 6C New York, NY 10038 Date: ,2004 Defendant PHI \1221091.8 12/2/04 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, P A 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON JPLEAS CUMBERLAND COUNTY OF PENNSYL VANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to MJ. Community Center, LLC CIVIL ACTION - LAW NO. 1J1f' (RIOt) u;;J Plaintiff, v. W ATCHUNG INTERNATIONAL LLC, Defendant. NOTICE UNDER RULE 2958.11 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO: W ATCHUNG INTERNATIONAL LLC, 11 E. Broadway, Suite 6C New York, NY 10038 A judgment in the amount of$33,984.40 plus costs and attorneys' fees has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. PH1\1221091.8 YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty A venue Carlisle, PAl 7013 (717) 249-3166 Date: December 2, 2004 BYV?~ asheena Harris, Esquire Attorneys for Inland Southeast Carlisle DST PH1\1221091.8 DUANE MORRIS LLP Rasheena Harris, Esquire Identification No. 91735 Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, P A 19103 (215) 979-1000 Attorneys for Plaintiff, Inland Southeast Carlisle DST IN THE COURT OF COMMON I'LEAS CUMBERLAND COUNTY OF PENNSYLVANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to MJ. Community Center, LLC CIVIL ACTION - LAW NO. {)tj ~ b'ltJO ~ Plaintiff, v. W ATCHUNG INTERNATIONAL LLC, Defendant. NOTICE Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a JUDGMENT BY CONFESSION has been entered against you in the above proceeding. Copies of all documents that have been filed with the Prothonotary in support of the Confession of Judgment are attached hereto. If you have any questions concerning this Notice, please call Rasheena Harris, Esquire at (215) 979-1561. HI {'~- ~" ~ Prothonotary .1t~ PHl\122109\.8 Exhibit A [ FRG1'1: Panasoni c FAX SYSrf , ,r, (J~/U'1;.-!:!OO:f 12: 38 FA:! PHONE NO. 118.8-1 Dollar Goodies '. LEASE AGREEMENT , Between and M.J. COMMUNITY CENTER, LLC WA TCHUNG INTERNATIONAL LL<: (d/b/a "Dollar GOOl'IES') r:" )~ (Landlord) (Tenant) yfJ., ~ Table of Contents Article ' Paoe 1. DEMISED PREMISES ......u............._...............~....... ..."....... ..........~............... ............1 2.. TE-RM .. ................".............................. .................. ......... ......,.... ....... ............ ....... ............ .....2 3. MINIMUM RENT................ ........ .................. ....... ............ ........... ..................... ...........3 4 . PERCENTAGE RENT.... ....... ......... ........................ .................... ............. ......'...... ...... 3 5. USE ... ... ............. ....... .......................... ......... ......... ............... ... ........ .... '" ..... ........ .... ......".. .... 6 6. TENANT'S ADDITIONAL AGREEMENTS A. AffirmativB Obligations.. ........... ...................... .............. 0................... ...... ..... .....8 B. ~egative Obligations.. ..... ........................... .....,..... ...................... ............ ......1 0 ~ 7 . TAXES ............................................................. ,........... ........................ ............. ...... ......12 8. COMMON AREA MAINTENANCE ..............................;. .....:.... .............:.................14 9. MAINTENANCE ............ ....... ......... ........................ ........... .......... ...... ............ ...........15 10. SURRENDER OF DEMISED PREMISES ..............................................................16 11. TENA~S PROPERTY ............................:................ .............................................17. 12. . ALTERATIONS. ..............;...... ........................................ ...... ............... ...... ...... .... ......17 13. ASSIGNMENT AND SUBLETTING ........................................................................18 14. HOLOI NG OVER........ ...................... ......... ................... ...... ...... ........ ...... .......... .......20 15. ACCESS TO DEMISED PREMISES ..........'............................................................20 _ 16. QUIET ENJOYMENT .................:.......::.......................... ................. ............ ............21 17. INSURANCE AND INDEMNIFICATION ........................ ..... .......... ..........................21 18. EMINENT DOMAIN ...... ................. ........ ............................... .................. .......... ........25 19. FIRE OR OTHER CASUALTY. ..................................................... ..........................26 20. BANKRUPTCY OR INSOL VENey............... .............. ............................. ...............27 21. WAIVER .....,...... ..................... ,........................... ... .....,... ..... ............ ......... ............... ......_1 .28 22. PAST DUE RENT................................................. ..... ........... ........ ............................28 23. ACCORD AND SA TlSFACTION ...................... .................. ................... .................28 24. DEFAULT BY TENANT .. ..... ......................... ............ ................................... ............29 25. SUBORDINATION .... ................... ........................ ..................... ....... ..... ~........... ......32 26. MORTGAGEE'S APPROVAL ......... ......... ....... ..... ..."..... .... ...... ........... ................. ....34- 27. TENANT'S CERTIFICATE ......... ....... ....................... ..... ........... .................._... .........34 28. NO OPTION .... ............ .0......... ...... ........ ......... .............. ..... ..... ..... ............ ........ ......... 34 , ..~ TFlhle of ConfBnts (Conf'd) Article E.a.ge 29. FORCE MAJEURE...... ..................... ................................... .;............................... ...35 30. RELATIONSHIP OF PARTIES ................................. ................ ................... ....... ....35 31. EXCULPATION OF LANDLORD ................... .............................. .... ............. ..........35 32. "TENANT DEFI NED ..... ................................................ ............ .............................. ..36 33. CAPTIONS AND ARTICLE NUMBERS...................... ........................................... .3'6 34. NOTICES .. .... ..... ......... ............. ................................"............................................. .36 35. RIGHT OF REDEMPTION. COUNTERCLAIM AND JURY TRIAL ........................37 36. BROKER.......... ..... .................................................. ."..............................................37 37.. GOV.ERN I N G LAW.............................................. .'.. .................................................37 38. INVALIDITY OF PARTICULAR PROVISIONS ........................................................38 39. PROVI SIONS B INDI NG .................. ......................... .............................................. ..38 40. TENANT SHALL DISCHARGE ALL L1ENS.............................................................38 41. EASEMENTS AND OTHER PROVISIONS FOR PERIPHERAL LAND ................39 42. UTI LITI ES..... .......... ........ ......... ............................. ~.. ..,.... ...... ................... ....... ..... .....39 43. COST OF LIVING ADJUSTMENT ...........................................................................40 44. FAILURE OF TENANT TO OPERATE ...................................................................42 45. ENTI RE AGREEMENT ........................................... ................ .............................. ...42 EXHIBITS' GUARANTY EXHIBIT "A": EXHIBIT "B": EXHIBIT "C": AS IS LEASE PLAN SIGN CRITERIA l, CARLISLE COMMONS LEASE THIS LEASE is made as of the ~ day of AUll/J ~ + _, 2003, by and betw~en'lLL COMMUNITY CENT~R, LLC, a limited Iiabil~ having an office at 300 Market Street, 'Johnstown, Pennsylvania 15901 (hereinafter referred to as "Landlord"), and WATCHUNG INTERNATIONAL LLC, a New York IimitE!d liability company, having an address at 11 E. Broadway, Suite Ge, New York, Newy,ork 10038, (hereinafter referred to as "Tenant"). Witnesseth: 1. OFMISFD PRFMISFS The Landlord hereby demises and leases to Tenant, and Tenant hereby rents from Landlord, the following described premises (hereinafter referred to as the "Demised Premises"): "Situate in the CARLISLE COMMONS (herE~inafter referred to as . the "Shopping Center") located on NEAR THE INTERSECTION OF INTERSTATE 81 AND HANOVFR S.TREET, in the City of CARlISI..E. County of CUMBERI AND, and State of PENNSYL VA~.IA, being that portion of the Shopping Center building known as CARLISLE COMMONS and numbered as Unit fiO.Q, and having irregular dimensions. containing approximately D'VO THOUSAND SEVEN HUNDRED FIFTY (2,750) square fE~et of ground floor level store space as shown hatched and dimensioned to the center of 'common walls and the outside of exterior or uncommon walls on Exhibit "B," attached hereto and made a part hereof." As used in this Lease, the words "Demised Premises," "gross leasable area of the Demised Premises," and "gross area of the Demised PrE~mises,n shall all be deemed to mean 2.150. square feet, as aforesaid. - 1 - " "I' Tenant accepts the Demised Premises pursuant to the Attached Exhibit "A" and all Tenant's signage shall be pursuant to the attached Exhibit "C". landlord reserves to itself the roof and exterior walls of the building containing the Demised Premises and of the Demised Premises, and all space above 12' 0" within the Demised Premises, to accommodate the Shopping CentE~r's structural, mechanical and eleCtrical conduit piping, ducting or venting requirements. Landlord and its agents further reserve the right on behalf of themselves or an authorizEld utility company to run utility lines, pipes, conduit or duct work when necessary or desirable through columns or within walls of the Demised Premises and to maintain, repair, alter, replace or remove the same. . In addition to any other reservation of rights herein made to landlord, Landlord also reserves the right at any time and from time to time: (a) to make or permit changes or revisions to the Shopping Center including additions to, subtractions from, rearrangements of, alterations of, modifications of or supplements to the building areas, walkways, entrances, exits, service areas, parking areaSt, driveways or other Common Areas, (b) to construct other buildings or improvements in the Shopping Center and to make alterations thereof or additions thereto and to build additional stories on any such building or buildings and to build adjoining same, and (c) to make or permit changes or revisions in the Shopping Center, including additions thereto, and to convey portions of the Shopping Center to others for the purpose of constructing thereon other buildings or improvements, including. additions thereto and alterations thereof; provided, however, that no such changes, rearrangements or other construction shall reduce the number of 'parking spaces provided by Landlord below the number of parking spaces required by law. 2. TERM TO HAVE AND TO HOLD the Demised Premises for a term of FIVE (5' lease years, to . commence: (i) SEPTEMBER 15. 2003, or (ii) on the date Tenant opens for business; , whichever is the first to occur. The first lease year shall be for a period of twelve (12) consecutive calendar months from the commencement date of the lease term, except that if such commencement date shall be other than the first day of a calendar month, the first lease year shall be the period ..2- from such commencement date to the end of the calendar month in which it shall occur, plus the following twelve (12) calendar months. Each leas'e year after the first lease year shall be a succeSsive period of twelve (12) calendar months. If the term of this Lease shall not have commenced within three (3) years of the date hereof, then either party shall have the right to cancel this Lease and both parties shall be relieved of all obligations hereunder. This Lease shall not be recorded in any place of public record. In addition to the Term as hereinbefore set forth. Landlord hereby grants TenClnt ONE (1) option to renew this Lease for one (1) option period of FIVE (5) yeaTS under the same terms and conditions as herein contained, excepting, however, that no further renewal or option shall be included, and further excepting that the Minimum Rent payable by Tenant during said option. period shall be as set forth under Article 3 of this Lease; provided, however, in order for Tenant to exercise its option to renew, Tenant must give Landlord notice in writing of its intention to renew ONE (1) YEAR, in advance, before the expiration of the original Term hereof. and further provided that Tenant's notice of intention to exercise said option shall not be effective if Tenant is in default of any of the material terms, covenants and conditions contained herein. 3. MINIMUM RENT During each year of the term of the Lease and throughout the Option Period, Tenant, in consideration of said demise, hereby covenants and agrees to pay to Landlord, without set-off or deduction of any kind, as minimum annual rent for the Demised Premises the sum of THIRTY -FOUR THOUSAND SEVEN HUNDRED SIXTY AND NO/100 DOLLARS ($34.760.00) per year in twelve equal monthly installments of TWO THOUSAND EIGHT HUNDRED NINETY-SIX AND 67/100 DOLLARS ($2.896.67) each all in advance, on the first da~ of every calendar month during said yE!ars. If the term of this Lease shall commence on a day other than the first day of the month, Tenant shall pay Minimum Rent equal to one- thirtieth (1/30th) of the monthly Minimum Rent multiplied by the number of days in the fractional month for which Tenant is oblig~ted to pay rent. 4. PERCENTAGE RENT In addition to the payment of the Minimum Rent as hereinabove provided, Tenant, during each year of the term of the Lease, shall pay to Landlord as Percentage Rent an amount equal to FOUR PERCENT (4%) of Annual Gross Sales (as !hereinafter defined) made in, on or from' the Demised ,Premises in excess of Tenant's breakpoint of FIVE HUNDRED SEVENTY-NINE THOUSAND THREE HUNDRED 'THIRTY-THREE AND 33/100 DOLLARS ($579,333.33). In the event that the fixed Minimum Rent for any lease year shall be reduced or abated for any reason whatsoever, the Percentage Rent breElkpoint set forth above shall be reduced proportionately to the decrease in the fixed Minimum Rent payable for said lease year. - 3 - "Gross Sales," as used herein, shall mean the amount of sales of all merchandise and/or services sold or rendered in, on, about or from the Demised Premises by Tenant or any subtenants, licensees or concessionaires, whether for cash or on a charge, credit or time basis without reserve or deduction for inability or failure to collect, including but not limited to such sales and services: (1) where orders originate at and/or are accepted by Tenant in the Demised Premises but delivery or performance thereof is made from or at any place other than the Demised Premises; (2) pursuant to mail, telegraph, telephone or other similar orders received or filled at or in the' Demised Premises; (3) by means of mechanical and other vending machines in the Demised Premises (but this shall not be construed as a consent of Landlord to Tenant's use'of such machines); (4) which Tenant in the normal and customary course of business would credit or attribute to its business upon the Demised Premises or any part or parts thereof. There shall be excluded from Gross Sales: {a} Amounts of refunds, allowances or discounts to customers, provided they have been included in Gross Sales and provided further that if such refunds, allowances or discounts are in the form of credits to cJ,Jstomers, such credits shall be included in Gross Sales when used; (b) Exchange of merchandise between stores of Tenant where such exchanges are made solely for the operation of Tenant's busin€~ss and not for the purpose of consummating a sale which has been made at, in or from the Demised Premises and/or for the purpose of depriving Landlord of the benefrt of such sales which otherwise would have been made at, in or from the Demised Premises; (c) Returns to shippers and manufacturers for credit; {d} Sales of trade fixtures or store operating 'equipment after use thereof in the conduct of Tenant's business in the Demised Premises; (e) All sums and credits received in settlement of claims for loss or damage to merchandise; (f) Amount of any excise or sales tax levied upon retail sales and payable over to the appropriate governmental authority, provided that specific record is made at the time of each sale of the amount of sales tax and the amount thereof is expressly charged to the customer, - 5 - Tenant covenants and agrees to keep upon the Demised Premises, or at its principal office, books and records in accordance with generally aGcepted accounting practice, in which shall be recorded Gross Sales. The books and records of account shall also include all federal, state and local tax returns of Tenant relating to Tenant's sales. Such books and records shall be open to the inspection of Landlord and Landlord's ~uthorized agents at all reasonable times during business hours, at any time during the term of this Lease and for a period of at least one (1) year after th~~ termination of this Lease. If Landlord shall make an al:ldit of Tenant's records and any such audit shows that the amount of Annual Gross Sales on Tenant's statement(s) was understated by more than one percent (1 %) of Annual Gross Sales for any lease year (but prorated for any shorter period), then Tenant (in addition to paying the' Percentage Rent due for such understatement) shall pay to Landlord the cost of the audit If Tenant shall fail to prepare and deliver any statement of Gross Sales required herein, Landlord I upon fifteen (15) days' written notice to T ena nt, may do any or both of the following: (i) elect to treat Tenant's failure to report.as a default of this Lease; or (ii) elect to make an audit of all books and records of Tenant whic.h in any way pertain to or show Gross Sales and to prepare the statement or statements which Tenant has failed to prepare and deliver. The statement or statements so prepared shall be conclusive on Tenant, and the Tenant shall pay on demand all expe:nses of such audit and of the preparation of any such statements and all sums as may be shown by such audit to be due as Percentage Rent. Tenant further agrees that for the purposes hereinbefore recited, Tenant will prepare, preserve and maintain, each lease year, for a perioQ of not less than three (3) years, all documents, books, accounts and records concerning salE~s from the Demised Premises. 5. !..l.SE Tenant agrees that the Demised Premises shall be occupied by no other person or entity except upon and with the written consent of Landlord first had and shall be used for the sole purpose of: The retail sale of popular priced general merchandise including, but not limited to: home decor and accessories, costume jewelry, bathroom accessories, toys, greeting cards, stationary, auto accessories, appiarel, kitchen accessories, gift wrap, party supplies, health & beauty supplies, n01velty candy & snacks & other incidental food items, and for no other purpose whatsoever. - 6 - 'FRlJ~l : P.3.na San I c FHX SYSTEM OS/071Z00J 12:3S FAX PHONE 1'10. Aug. 07 2003 01:24AM Q100J Unless otherwise consented to in writing by Landlord, Tenant agrees to conduct Its business in the Demised Premises und?r the name of: "DOLLAR GOODIEs" ~ ( 8/7/V) ) Tenant ag~s to keep it9 Demised Premises adequately illuminated and continuously and uninterruptedly open for business during the same days, nights and hours as any departlJ1ent store or stores located in the Shopping CentE~r and at least, in any event. from the hours of 1 0:00a.m. to 9:00 p.rn. on Monday through Saturday and from 12:00 noon to 6:00 p.m. on Sunday, and shall maintain therein a subst.:mtial stock of merchandise and a sufficient number of employees for the purpose of s~~lIIng said merchandise, unless prevented from doing so by strikes, fire, casualties or other causes beyond Tenant's control. In no event, however, will Tenant open for bU::liness after 10:00 p.m. or before 9:00 a.m. on any day without landlord's consent. The hours of operation may be changed by Landlord In its sole discretion. Tenant further agrees that during the entire.term hereof no part of the Demised Premises shall be abandoned or left vacant unless the Demised !:;)remises has been destroyed by flre or other casualty. LaOdlord and Tenant acknowledge that the realization of the benefits of a percentage rent lease are dependent upon Tenant's maximizing its Gross Sales, and that self-competition is inconsistent with the generation of maximum Gross Sales. The parties further acknowledge that the annual Minimum Rent was n~lotiated together with and giving consideration to the Percentage Rent rate and base and that self-competition by Tenant will deprive Landlord afa bargained-for consideration. Accordingly, Tenant covenants and agrees that during the Term and ant extensions or r4;!newals thereof, Tenant will not, , directly or indirectly, own, operate. or be financially interested in, either with itself or with others, a business like, or similar to, or in competition with that for which the Demised Premises are Jet within a radius of five (5) mUes of the Shopping Center, measuring from any point on the perimeter of the Shopping Center of which the Demised Premises are a parl The covanant of the preceding sentence shall be inapplicable to any business of Tenant existing as of the date hereof, provided the nature and character of such business remains the same and is continuously operated at the same location. If Tenant shall breach the covenant contained herein. then in addition to the rights and remedies provided in this Lease, LaJ:1dlord may, at its option. either: (I) terminate this Lease upon thirty (30) days' written notice to Tenant, or 0n enjoin thl~ operation of the violative store of Tenant, Dr (iii) include ail Gross Sales generated by any violative store of Tenant in calculating the Percentage Rent due under this Lease. 6. TENANT'S ADDITIONAL AGRFEMFNTS A. Affirmative Obligation~ Tenant agrees, at its own cost and expense, to: . (1) Keep and maintain in a safe, neat and clean condition all portions of its Demised Premises and appurtenances including adjoinin~1 areas, storefront, vestibules, entrances and returns, doors, fixtures, windows and plate glass. It is specifically understood and agreed that Tenant shall also keep the mall area in the vicinity of its Demised Premises neat and clean and will, hourly, using its own employees, sweep up and haul away all debris discarded in :said common area by Tenant's patrons. (2) Use its best efforts to cause all trucks servicing thel Demised Premises to load and unload prior to the hours of opening for business to the general public of the Shopping Center. (3) Cause its employees, officers and agents to park only in such places provided and designated by Landlord for employee parking and specifically not to permit parking by same in any service court area. (4) Abide by and observe all reasonable rules sind regulations established by Landlord from time to time with respect to the operation of the Shopping Center and its common areas. (5) Cooperate fully with Landlord and other tenants of the Shopping Center in promoting use of tradenames and slogans as may be adopted for the Shopping Center and in all promotional advertising campaigns. (6) Keep its display windows and signs electrically 1i9hted during such hours that the Shopping Center is open for business and during such other periods as the Landlord may reasonably prescribe. - 8 - (7) Shut off all exhaust fans (except smoke exhaust fans), if any, servicing the Demised Premises at all times when the Demised Premises are closed; if Tenant's Demised Premi$es front on an enclosed mall, Tenant shall maintain positive air pressure so as to prevent the drawing of heated or cooled air from the enclosed mall and shall keep the Demised Premises heated or air conditioned. as the case may be, to at least the same minimum temperature (in the case of heat) or at the same maximum temperature (in the case of air conditioning) as Landlord shall attempt to maintain in such mall. (8) Handle and dispose of all trash, rubbish, refuse, garbage and waste in accordance with regulations established by Landlord and consistent with state or local codes and ordinances, and not permit the accumulation or burning of any trash, rubbish, refuse, garbage or waste materials in, on or about any part of the Shopping Center. Landlord may, at its option, provide a designated trash hauler and compactors for trash and garbage removal for Tenant. If such is provided, Tenant shall use and pay for the services of the designated trash hauler for the Shopping Center and for the use of any compactot service~ if any. Said payment shall be made by Tenant monthly, in advance, commencing with the term of this Lease and thereafter on the first day of every calendar month during the term. In no event shall Tenant be permitted to locate dumpst.ers or any other trash container outside its Demised Premises. (9) Participate in any reasonable window cleaning a,nd exterminating programs that may be established by Landlord for all or substantially all other stores and busjnesses in the Shopping Center. (10) Take no action which would violate Landlord's union contracts, if any, affecting the Shopping Center, nor create any work stoppage, picketing, labor disruption or dispute or any interference with the business of Landlord or any tenant or occupant in the Shopping Center or with the rights and privileges of any customer or other person, lawfully in and upon said Shopping Center, nor cause any impairment or reduction of the goodwill of the Shopping Center. (11) Pay when due all personal property taxes assessed against Tenant's fixtures and furnishings, all taxes arising from the operation of Tenant's business, and pay for all license fees, occupational taxes and other governmental charges assessed by reason of Tenant's use or occupancy of the premises: Tenant will permit no lien to attach to the Demised Premises as a result of taxes payable by Tenant. Tenant - 9 - shall also pay any and all sales and use taxes which may be levied on utilities, services and goods supplied by Landlord to Tenant or for Tenant's use. (12) Tenant win provide sanitary napkin disposal rec:eptacles In the women's rest rooms. (13) Tenant shall install grease traps at the location of all sinks, drains, floor drains and dishwashers, if any, and clean and service the same on a. monthly basis. (14) If Tenant's use allows the sale of any food items then Tenant shall enter into and keep in force an extermination contract for pest control which shall provide for regular monthly extermination services to the Demised Premises and shall furnish landlord with a copy of said contract. All other tenants shall provide for extermination services as reasonably required for tenants' permitted use in landlord's reasonable discretion. (15) Tenant shall pay to landlord, landlord's administrative costs for the processing of any Tenant-requested documents such as an Assignment, Sublease, a Waiver, or Subordination of lien, but not less than a minimum of Three Hundred Fifty Dollars ($350.00). Nothing herein shall be construed to obligate the landlord to execute any of the above-mentioned documents. B. Negative Obligations Tenant agrees that it shall not, without first obtaining Landlord's consent: (1) Permit its Demised Premises to be used in any way which will injure the reputation of the same (or of the Shopping Center) or may be a nuisance, annoyance, inconvenience or damage to the tenants of the Shopping Center or of the neighborhood including, without limiting the generality of the foregoing, any odors, noise by the playing of any musical instrument or radio or television, or the use of a microphone, loudspeaker, electrical equipme:nt, or utilizing flashing lights or search lights or any other equipment which in the judgment of Landlord might cause disturbance, impairment or interference with the use or enjoyment by any other tenant in the Shopping Center. - 10 - (2) Display any merchandise, solicit business or distribute advertising or promotional matter outside the Demised Premises or in any way obstruct sidewalks or common areas adjacent thereto. (3) Permit deliveries of any kind through the front entrance of the Demised Premises except where no other entrance to the Demised Pn3mises is available. (4) Permit the Demised Premises to be used for lodging purposes. (5) Permit any auction sale, fire sale, bankruptcy sa113, liquidation sale, and/or going out of business sale, other similar sales or promotions, or similar types of sensational sales promotions to be conducted in the Demised Premises. (6) Use, occupy, suffer or permit any use of its Demised Premises which would (a) violate any law, ordinance or regulation, (b) constitute a nuisance, (c) constitute an extra hazardous use, or (d) violate, suspend or void any policy or policies of insurance of either Landlord or any other tenant in the Shopping Center. or increase the cost of such insurance over and above its normal cost. (7) Subject any fixtures, furnishings or equipment in or on Tenant's Demised Premises which are affixed to the realty to any mortgages, liens, conditional sales agreements, security interests ~r encumbrances. (8) Except for vending machines used solely by Tenant's employees, operate on the Demised Premises or in any part of the Shopping Center any coin or token operated vending machines or similar devices (including without limitation, pay telephones, pay lockers, pay toilets, scales, amus1ement devices and machines for the sale of merchandise and/or commodities). (9) Use any fork lift truck, tow truck or any other powHred machine for handling freight in the Demised Premises, unless the same be powered by electricity. (10) Place a load on any floor in the Demised Premises or within the interior of the Shopping Center which exceeds the floor load per square foot which such floor was designed to carry, or install, operate or maintain therein any heavy item of equipment except in such manner as to achieve proper distribution of the weight. - 11 - 7. TAXES A. The, term I '-~ - w_~ ~ - ~= - ':k '~ ~ ,\ - :- ; : ~~--:- :;~<__r~'t:_-~:w'~",~ ~:: '~'~-~;"~~~h ~~~;d% -., '> ; f t ~ ~ - , .....:J -- The landlord shatl pay, or cause to be paid, all Taxes, provided, however, that if authorities having ju'risdiction assess Taxes on the Shopping Center and/or the improvements contained therein which the Landlord deems excessive, the Landlord may defer compliance therewith to the extent permitted by law so long as the validity or amount thereof is contested by the Landlord in good faith and so long as the Tenant's occupancy of the Demised Premises is not disturbed or threatened. B. The Tenant shall pay all taxes which may be lawfully charged, assessed, or imposed upon all fixtures and equipment of every type and also upon all personal property in the Demised Premises, and the Tenant shall pay all license fees and other charges which may lawfully be imposed upon the business of the Tenant conducted upon the Demised Premises. ....~~\O,. .~. ,- xcept that in any event there shall be excluded from such floor , area the items set forth below; provided, however, with respect to any buildings located on the Shopping Center (and any land appurtenant thereto) which are now or hereafter separately owned or assessed, at the Landlord's option, the taxes and assessments relating thereto shall be deemed not to be ''Taxes" hereunder, and in such event, there shall be . rJI' '~:- :;, -.~ ,-;- ~:':--I})'~:L~- - 12 - -- :'~l--~ - : ' ," -;: ~~--:';-:":~~;C"~t-~ _~ _ r . ~ . ____ Said arnount shall be considered as additional rent and subject to all of the provisions of this Lease as to default in the payment of rent. The Tenant's fractional share of Taxes shall be Hquitably adjusted for and with respect to the first and last partial tax years (if any) of the term of this Lease~ Where the applicable tax bills and computations are not available prior to the end of the term hereof, then a tentative computation shall be made on the basis of the previous year's Taxes payable by the Tenant, with a final adjustment to be madE~ between the Landlord and the Tenant promptly after all bills and computations are available for such period. 1- .~ : I'.~ ~'..: ~:_, ... ~,,I~ ~ f;.4---: ~:-'~,; I ~ :r ,.t ~l-=-~:-..J,: f'r..~ ,~ ~~:';"\-; ;...~ In every case, Taxes shall be adjusted to take into account any abatement or refund thereof paid to the Landlord, less all of the Landlord's costs of securing such abatement or refund (the Landlord having the sole right to contest Taxes). If Landlord shall in its reasonable judgment negotiate, review, administer, appeal or contest such Taxes, landlord shall be entitled to bill Tenant for its said pro rata share of the costs and expenses thus incurred by Landlord as and when the same are incurred, and the same shall constitute part of such Taxes. To the extent that Landlord has so billed and received frorn Tenant payment of such costs and expenses, the sam~ shall not be deducted as aforesaid from the abatement or refund, if any, ultimately received with respect thereto. D. In an attempt to reduce the potential tax burde:n on the Shopping Center as a result of the development and operation of the ShoPpin9 Center in the local community(s) and in consideration for the. furnishing of certain servicE~s to the Shopping Center by the local municipalities which are required by governmental authorities for the development of - 13 - the Shopping Center, Landlord may agree with such governmental authorities to hold the Shopping Center responsible for certain direct and indirE~ct impact fees. In such case upon notice from Landlord. Tenant shall pay to Landlord, as additional rent and in substitution, in whole or in part, for any special district real estate taxes, fees or other assessments relating to such fees which could othervvise be imposed. against the Shopping Center if such fees were imposed directly under governmental responsibility, an annual charge representing Tenant's pro rata share of the assessed fees. Tenant's pro rata share of such costs shall be computed in the same. manner as used to compute Tenant's pro rata share of Tax Expense as provided in Section C above. This annual charge shall be paid ,by Tenant in equal monthly installments, in advance, on the first day of each calendar month during the term of this Lease. E. Should any governmental authority acting under any present or future law, ordinance or regulation, levy, assess or impose a tax, E~xcise, assessment and/or any business and/or occupation taxes (other than income or franchise tax) upon, against the rentals payable by Tenant to Landlord, either by way of substitution or in addition to any. existing tax on land and buildings or otherwise, Tenant shall be responsible for and shall pay such tax, excise, assessment, cmd any business and occupation taxes levied directly against the Tenant, or shall reimburse Landlord for the amount thereof, as the case may be, as additional rent, on or before the date that any fine, penalty or interest would be added thereto for nonpayment. Tenant shall also pay its pro rata share of any tax or charge levied in lieu of real estate taxes, or partially in lieu of real estate taxes. 8. COMMON AREA MAINTFNANCE A. Landlord shall make available from time to time within the S~opping Center such Common Areas as and to the extent Landlord shall alone from time to time deem appropriate. Common Areas shall be defined as including but not limited to any parking areas, driveways, service courts, access and egress, roads, sidewalks, open and enclosed courts and malls, landscaped and planted areas, fire corridors, meeting areas and public rest rooms. Landlord shall operate, manage, equip, repair and maintain said Common Areas for their intended purposes in such manner as L.andlord shall in its sole discretion from time to time determine and may from time to time change the size, location, elevation, nature and/or use of any Common Areas and may make installations and/or construct or erect buildings, structures, booths, kiosks (both temporary and permanent) therein or thereon and move and remove the same and shall have the right to retain the revenue therefrom for its own account. Landlord shall also have the right to retain revenue from income producing events whether or not conducted for promotional purposes. - 14 - B. Tenant, its officers, employees, customers and invitees shall have the nonexclusive right, in common with Landlord and all others to whom Landlord has or may hereafter grant rights~ to use said Common Areas as designated by Landlord subject to such rules and regulations as Landlord may impose. Landlord may at any time'c1ose any Common Area to make repairs or changes or prevent the acquisition of public rights in such area or to discourage non-customer parking. 9. MAINTENANCE ther than as herein provided I Landlord shall not be responsible to make any other improvememts or repairs of any kind in or upon the Demised Premises. Without limiting the foregoing, it is specifically agreed that any repairs to the Demised Premises or to the loading dock servicing the Demised Premises (if any) caused by Tenant its employees, agents, invitees, licensees or contractors shall be promptly repaired at Tenant's sole cost and expense. Tenant covenants and agrees to keep and maintain at its own cost and expense in good order, condition and repair the Demised Premise's and every part thereof, except as hereinbefore provided, including, but without limitation, all structural or exterior portions not originally constructed by Landlord, the exterior and interior portions of all doors, door checks and operators, windows, plate glass and showcases surrounding the Demised Premises, all plumbing and sewage facilities and electl;cal systems within the Demised Premises, fixtures, and electrical equipment, and, interior walls, floors and ceilings, signs - 15 - and all interior building appliances and similar equipm~nt. Tenant further agrees to replace any of said equipment when necessary at its own cost and expense. Tenant further agrees to maintain, repair and replace, at its own cost and expense, the heating and air conditioning equipment servicing the Demised Premises and shall obtain and keep in force a monthly service contract for said equipment and furnish Landlord with a copy of said contract. If Tenant refuses or n"eglects to commence or comp.lete repairs promptly and adequately, Landlord may, but shall not be required to do so, make or complete said repairs and Tenant shall pay the cost thereof to Landlord upon demand, together with the sum equal to fifteen percent (15%) of said costs for overhead and an additional sum equal to ten percent (10%) of said amount for profit, all due and payable within ten (10) days after billing from Landlord. 10. SURRE=NDER OF DEMISFD PREMISES A. Tenant covenants and agrees to deliver up and surrender to Landlord the possession of the Demised Premises upon the expiration of this Lease or its earlier termination, as herein provided, in as good condition and repair as the same shall be at the commencement of said term or may have bef~n put by Landlord during the continuance thereof, ordinary wear and tear and damage by fire or the elements excepted. Tenant, at its expense, shall immediately repair any damage to the Demised Premises caused by its vacating the same or by Tenant's removal of such trade fixtures, signs and other personal property. . B. All leasehold or building improvements such as carpeting and padding, light fixtures and heating and air conditioning equipment and any construction work done by Tenant shall, when installed or completed, attach to the freehold and become and remain the property of Landlord without any payment therefore. If Tenant shall not be then in default, Tenant may remove its trade fixtures, signs and other perSonal property. c. If Tenant shall be then in default, Tenant shall not have the right to remove any of said trade fixtures, signs and other personal property and same shall remain and become the property of Landlord. - 16 - D. If Tenant fails to remove said trade fixtures, signs, and other personal property which Tenant has a right to remove pursuant hereto, at or prior to the termination of the term hereof, or earlier termination of the Lease, Landlord rnay, at its election: (i) consider the same abandoned and retain the same as Landlord's property; or (ii) remoVe and store the same for the account of Tenant and at Tenant's cost and expense. E. Tenant's obligation to observe and perform any of the provisions of this -.Article shall survive the expiration of the term hereof or earlier termination of this lease. 11. TENANT'S PROPFRTY Landlord, its agents or employees shall not be liable and Tenant waives all claims for any damage to persons or property sustained by Tenant or any person claiming through Tenant located on the Demised Premises, nor for the loss of or damage to any property of Tenant or of others by theft or otherwise, whether caused by other tenants or persons in the Shopping Center or in the Demised Premises, occupants of adjacent property or the public, or caused by operations in construction of any private, public or quasi-public work. All property of Tenant kept or stored on the Demised Premises shall be so kept or stored at the risk of Tenant only and Tenant shall hold Landlord harmless from any claims arising out of damage to the same or damage to Tenant's business, including subrogation claims by Tenant's insurance cartier. Landlord shall not be responsible or liable to Tenant fo'r any loss or' damage that may be occasioned by the acts or omissions of persons occiJpying any space adjacent to or adjoinin!~ Tenant's Demised Premises, or any part thereof, or for any loss or damage resulting to Tenant or its property from water, gas, steam, fire or.the bursting, stoppage, or leaking of sewer pipes or from the heating or plumbing fixtures, or from electric wires, or from gas or odors or from roof leaks, or caused in any manner whatsoever. 12. ALTERATIONS Tenant further covenants not to permit alterations of or upon any part of the Demised Premises except by and with the written consent of Landlord first had. All alterations and additions to the Demised Premises shall be made in accordance with all applicable laws, ordinances and regulations and shall remain for the bE~nefrt of Landlord unless otherwise provided in the said written consent above mentioned; and, Tenant further agrees, in the event of making such alterations as herein provided" to indemnify and save harmless - 17- . . . Landlord from all expense, liens, claims or damages to either persons or property or the Demised Premises, arising out of or resulting from the undertaking or making of said alterations or additions. 13. ASSIGNMENT AND Sf JSt ETTING A. Tenant or.Ten~nt's legal representatives or successors in interest shall not assign or transfer this Lease, enter into license or concession agreements, hypothecate this Lease or Tenant's interest in and to the Demised Premis1es, sublet the whole or any part of the Demised Premises, or permit any other persons to occupy same without the written consent of Landlord first had, references elsewhere herein to assignees notwithstanding. Any assignment or subletting, even with the consent of Landlord, shall not relieve Tenant from liability for payment of rent or other sums herein provided or for the obligation to keep and be bound by the terms, conditions and covenants of this Lease, notwithstanding the fact that this Lease may be amendf~d by agreement between such assignee or subtenant and Landlord. The acceptance of rent from any other person shall not be deemed to be a waiver of any of the provisions of thIS Lease or to be a consent to the assignment of this Lease or subletting of the Demised Premises. In the event Tenant shall assign its interest in this Lease or sublet the DemisE~d Premises for rentals in excess of its rental set forth hereundE?rlT,E?.D.~Dt~haU..p.~y plLpI- $.P~tl e>.cG.~$SJelJtaUQ, Landlord. as".. . " ,-, 'iidaitlonaf renf ' Corise"nt -of randlord may be withheld for any reason or for no reason. B. Each assignment, transfer, subletting, license, concession or hypothecation agreement to which there has been consent shall be by instrument in writing, in form satisfactory to Landlord and shall be executed by the assignor, transferor, sublessor, licensor, concessionaire, hypothecator or mortgagor, and the assignee, transferee, sublessee, Hcensee, concessionaire or mortgagee shall agree in writing for the benefit of Landlord to assume, to be bound by, and to perform the terms, covenants and conditions of this Lease to be done, kept and performed by Tenclnt. One executed copy of such written instrument shall be delivered to Landlord. Failure to first obtain in writing Landlord's consent, or failure to comply with the provisions of this Article, shall operate to prevent any such transfer, assignment, subletting, lict:mse, concession agreement, or hypothecation from becoming effective. C. An assignment for the benefit of creditors or by operation of law shall not be effective to transfer any rights to assignee without the written consent of Landlord first having been obtained. - 18 - .. D. In the event of any assignment or subletting, even with the consent of Landlord, then at Landlord's option either: (i) Minimum Rent shall be the Minimum Rent stated in this Lease, including any increases which may occur or may have occurred from time to time under this Lease, multiplied by a fraction, the numerator of which is the Price Index for the month immediately following the effe,ctive. da~.,Qf such assignment or subletting, and the denominator of which is the Base InJe~a~s stc~ Indexes are defined in Article in this Lease entitled "Cost, of Living Adjustment"); or (ii) Minimum Rent shall be the Minimum Rent stated in this Lease, including any increases which may occur or may have occurred from time to time under this Lease, plus the periodic payments payable by any assignee or subtenant under its agreement with Tenant in excess of that provided for in this Lease; or (iii) Tenant shall pay Landlord, in addition to all payments otherwise required under this Lease. the amount of any lump sum payment payable by any assignee or subtenant under its agreement with Tenant in excess of that provided for in this lease or (iv) Minimum Rent shall be equal to the amount of the annual average of total Minimum Rent and Percentage Rent paid for the Demised Premises over the three (3) previous calend'ar years. The acceptance of rent from any other person shall not be deemed to 'be a waiver of any of the provisions of this Lease or to be a consent to the assignment of this lease or subletting of the Demised Premises. E. Any consent by Landlord to any assignment or slJbletting, or other operation by a concessionaire or licensee, shall not constitute a waiver of the necessity for such consent under any subsequent assignment or subletting or operation by a concessionaire or licensee. F. Reference anywhere else in this lease to an assignee or subtenant shall not be considered as a consent by landlord to such assignment or subletting nor as a waiver against the same except as specifically permitted in this Article. G. Notwithstanding anything contained herein to t1he contrary, in the event Tenant assigns this Lease or sublets the Demised Premises, Landlord shall have the right to recapture the Demised Premises within ninety (90) days after Landlord receives written notice from Tenant of said assignment or sublease, or within ninety (90) days following the date upon which said assignee or sublessee takes possession of the Demised Premises, whichever is later. Landlord's right to recapture the Demised Premises shall be exercised within said ninety (90) day time period by giving Tenant and Tenant's assignee or sublessee written notice of Landlord's intention to recapture. 'Should the Landlord elect to recapture the Demised Premises in accordance herewith, Tenant shall be relieved of all obligations and liabilities remaining under the Lease, and Tenant and - 19 - , . .. Tenant's assignee or sublessee shall vacate the Demised, Premises within thirty (30) days following receipt of Landlord's notice of intention to recapture. H. Provided Tenant is a corporation, then if at any time during the term of this Lease any part or all of the corporate shares of Tenant shall be transferred by sale, assignment, bequest, inheritance, operation of law or other disposition so as to result in a change in the present effective voting control of Tenant by the person or persons owning a majority of said corporate shares on the date of this Lease, Tenant shall promptly notify Landlord, in writing, of such change, and Landlord may terminate this Lease at any time after such change in control by giving Tenant ninety (90) days' prior written notice of such temiination. The provisions of the preceding sentence, however, shall not be applicable if control of the corporation changes as the result of a public offering. 14. HOt DING OVER If Tenant shall remain in possession of all or any part of the Demised Premises after the expiration of the term of this Lease or any renewal thereof, then Tenant shall be deemed a tenant of the Demised Premises from month to month subject to all of the terms and provisions hereof, except that Tenant's fixed minimum rent during any month to month tenancy shall be an amount equal to twice the amount prevailing at the expiration of the initial term. 15. ACCFSS TO DFMISED PR~MISES Tenant agrees to permit Landlord or Landlord's agents, employees or servants to inspect or examine the Demised Premises at any reasonable time and to permit the Landlord to make such repairs to the building of which the Demised Premises is apart that the Landlord may deem desirable or necessary for its preservation and which Tenant has not covenanted herein to do or has failed so to do. Tenant further agrees that on and after ninety (90) days next preceding the expiration of the term of this Lease, Landlord or its agents shall have the right to show the Demised Premises to potential tenants and to place notices o1fering the Demised Premises "To Let" or "For Sale" o~ the front of the Demised Premises or any part thereof. - 20- 16. OtJlET ENJOYMENT Landlord covenants and agrees that if Tenant shall perform all of the covenants and agreements. herein stipulated to be performed on Tenant's part, Tenant shall, at all times during said term, have the peaceable and quiet enjoyment and possession of the Demised Premises without any manner of hindrance from Landlord or any persons lawfully claiming through Landlord. 17. INSURANCE AN!) INDEMNIFICATION A. Tenant covenants and agrees to provide Landlord on or before the turnover of possession of the Demised Premises to Tenant, and to keep in force during the entire term of this Lease: (1 )(a) comprehensive general liability insurance relating to the Demised Premises and its appurtenances in an amount of not less than One Million Dollars ($1,000,000) combined single limit for bodily injury and property damage. Such insurance shall also include premises-operations, products/completed operations, personal injury, host liquor liability and blanket contractual. If this insurance is not available, then .Tenant shall provide: (1 )(b) commercial general liability insurance (including premises-operations, products/completed operations, cOlitractual and personal injury) in an amount not less than Two Million Dollars ($2,000,000) General Aggregate; One Million Dollars ($1,000,000) each occurrence with a personal injury and advertising injury aggregate of Two Million Dollars ($2,QOO,OOO) and. a products/completed operations aggregate of One Million Dollars ($1,000,000); (2) fire, extended coverage, vandalism, and malicious mischief, and so called "all- risks" insurance covering all decorations and improvements in the Demised Premises as well as the full replacement cost of all fixtures and contents therein, with a deductible of not more than $1,000; (3) plate glass insurance with respect to all plate and other glass in the Demised Premises; and . - 21 - (4) jf there is a boiler or any air conditioning equipment in, on, adjoining above or beneath the Demised Premises, broad form. boiler or machine insurance in the amount of Two Hundred Fifty Thousand Dollars ($2:50,000). Tenant further agrees to deliver to Landlord, at least fifteen (15) days prior to the time such insurance is first required to be carried by Tenant, and thereafter at least fifteen (15) days prior to the expiration of any such policy, either a duplicate original or a certificate and true copy of all policies procured by Tenant in compliance with its obligations hereunder, together with evidence of payment therefor and including an endorsement which states that such insurance may not be cancelled except upon thirty (30) days' written notice to Landlord and any designee(s) of Landlord. Any certificate of insurance produced hereunder shall name the Landlord and any designees as an additional insured. B. All of the aforesaid insurance shall be written by one or more responsible insurance companies satisfactory to Landlord; all such insurance may be carried under a blanket policy covering the Demised Premises and any other of Tenant's stores and shall contain endorsements that: (1) such insurance may not be cancelled or amended with respect to. Landlord (or its designee{s}) except upon trlirty (30) days' written notice by registered mail to Landlord (and such designee{s}) by the insurance company; and (2) Tenant shall be solely responsible for payment of premiums for such insurance. In the event Tenant fails to furnish such insurance, Landlord may obtain such insurance and the premiums shall be deemed additional rent to be paid by Tenant to Landlord upon demand. C. The minimum limits of the comprehensive general liability policy of insurance shall in no way limit or diminish Tenanfs liability under Section G hereof and shall be subject to increase at any time, and from time to time, after the commencement of the fifth (5th) year of the term hereof if Landlord, in the exercise of its reasonable judgment, shall deem same necessary for adequate protection. Within thirty (30) days after demand therefor by Landlord, Tenant shall furnish Landlord with evidence that such demand has been complied with. D. Tenant agrees, at its own cost and expense, to comply with all of the rules, regulations and recommendations of the Fire Insurance Rating Organization having jurisdiction and any similar body. If at any time and from time to time, as a result of or in connection with any failure by Tenant to comply with thE! foregoing sentence or any act of omission or commission by Tenant, its employees, agents, contractors or licensees, or as a result of or in connection with the use to which the Demised Premises are put - 22- 11 I I (notwithstanding that such use may be for the purposes hereinbefore permitted or that such use may have been consented to by Landlord), the fire insurance rate(s) applicable to the Demised Premises, or the building in which same are located. or to any other premises in said building, or to any adjacent property owm~d or controlled by Land10rd, or an affiliate of Landlord, and/or to the contents" in Ciny or all of the aforesaid properti~s (including rent insurance relating thereto) shall be higher than that which would be applicable for the least hazardous type of occupancy legally permitted therein, Tenant agrees that it will pay to Landlord, on demand, as additional rent, such portion of the premiums for all fire insurance policies in force with respect to the aforesaid properties (including rent insurance relating thereto) and the contents of any occupant thereof as shall be attributable to such higher rate(s). If Tenant installs any electrical equipmel)t that overloads the lines in the Demised Premises or the building in which the Demised Premises is located. Tenant shall, at its own cost and expense, promptly make whatever changes are necessary to remedy such condition and to comply with all requirements of Landlord and the Board of Fire Insurance Undervvriters and any similar body and any governmental authority having jurisdiction thereof. For thl3 purpose of this paragraph, any finding or schedule of the Fire Insurance Rating Organization having jurisdiction thereof shall be deemed to be conclusive. In the event that thi,s Lease so permits and Tenant engages in the preparation of food or packaged foods or engages in the use, sale or storage of inflammable or combustible material, Tenant shall install chemical extinguishing devices (such as Ansul) approved by the Fire Insurance Rating Organization and shall keep such devices under service as required by such organization. In addition, if gas is available, Tenant shall install gas cutoff devices, both manual and automatic. E. Each insurance policy carried by Landlord or Tenant and insuring aU or any part of the Shopping Center, the Demised Premises, including improvements, alterations and changes in and to the Demised Premises made by eiither of them and Tenant's trade fixtures therein, shall be written in a manner to provide that the insurance company waives all right of recovery by way of subrogation" against Landlord or Tenant, as the case may be, in connection with any loss or damage to thE~ Demised Premises, property or business caused by any of the perils covered by fire and extended coverage, building anq contents, and business interruption insurance, or for which either party may be reimbursed as a result of insurance coverage affecting any loss suffered by it; provided, however, that the foregoing waivers shall apply only to the extent of any recovery made by the parties hereto under any policy of insurance now or hereafter issued. So long as the policy or policies involved can be so written and maintained in effect, neither Landlord nor Tenant shall be liable to the other for any such loss or damage. In the event of inability on the part of either party to obtain such provision in its policy or policies with the carrier with whom such insurance is then carried, or such carrier requires payment of additional premium for such provision, the party so affected shall give the other party written notice of such inability or the increase in premium as the case may be. The party - 23 - , . to whom such notice is given shall have fifteen (15) days from the receipt thereof within which: (1) in the case of such inability on the part of the party, to procure from the aforesaid party's insurance carrier in writing, at no increase in premium over that paid theretofore by the party so affected to obtain such waiver of subrogation; (2) in the case of increased premium, to pay the party so affected the amount of such in~rease; (3) to waive, in writing, within the time limit set forth herein, such requirement to obtain the aforesaid waiver of subrogation. Should the party to whom such notice is given fail to comply as aforesaid within the said fifteen (15) day period, each and every provision in this paragraph in favor of such defaulting party shall be cancelled and of no further force and effect. F. (1) general liability insurance relating to the Shopping Center and its common areas in an amount not less than One Million Dollars ($1,000,000) with respect to anyone occurrence and umbrella liability insurance in an amount not less than Five Million Dollars ($5,000,000); (2) property insurance relating to loss or damage to the Shopping Center including coverage for fire, extended coverage, and the so called "all-risks" perils in an amount equal to the full replacement cost value of the Shopping Center buildings and improvements originally constructed by landlord; and (3) such additional insurance or more extensive coverage as shall be required by Landlord or.by the holder of any mortgage on the Shopping Center. - 24- . . G. Except for Landlord's negligent actions, Tenant shall and will indemnify and save harmless Landlord and any department store lessee, owner and/or operator in the Shopping Center, their agents, officers and employees from and against any and all liability, claims, demands, expenses, fees, fines, penalties, suits, proceedings, actions and causes of action of any and every kind and nature, arising or growing out of or in any way connected with Tenant's use, occupancy, management or control of the Demised Premises and/or Tenant's operations or activities in the Shopping Center. This obligation to indemnify shall include reasonable legal' and investigation costs and all other reasonable costs, expenses and liabilities from the first notice that any claim or demand is to be made or may be made. The foregoing indemnification shall survive the expiration or termination' of the Lease due to the lapse of time or otherwise. 18. EMINFNT DOMAIN A. If the whole of the Demised Premises. or such portion thereof as to render the remainder unsuitable for the purposes for which the Demised Premises were leased, be taken or condemned for any public or quasi-public USE: or purpose by any competent authority in appropriation proceedings or by right of eminemt domain, then this Lease shall cease and terminate from the time possession thereof is required for public use. Any dispute under the provisions of this paragraph shall be submitted to the American Arbitration Association in accordance with its proGedures at such time, which determination shall be binding upon the parties hereto. B. If any or all of the buildings or common areas of the Shopping Center are so taken (whether or not the Demised Premises are so taken) so that, in the sole judgment of Landlord, the Shopping Center cannot be operated as an integral unit, then this lease shall cease and terminate from the time possession themof is required for public use. C. If any part of the Demised Premises shall be so taken and this Lease shall not terminate under the provisions of subsection A above, then Landlord, at its own expense, shall repair and restore the portion not affected by the taking and thereafter the Minimum Rental to be paid by Tenant shall be equitably and proportionately adjusted. The repair - 25- , . and restoration work of Landlord shall not, however, exceed the scope of the work required to be done by Landlord in originally constructing Tenant's Demised Premises and the cost thereof shall not exceed the net proceeds of the condemnation award actually received and retained by Landlord. D. All compensation awarded or paid upon such a total or partial taking shall belong to and be the property of Landlord without participation by Tenant and without any. deduction therefrom for any present or future estate of Tenant. Tenant shall, however, be entitled to claim, prove and receive in such condemnation proceedings, such award as may be allowed for loss of business and for fixtures and other equipment installed by Tenant, provided that no such claims of Tenant shall diminish or otherwise adversely affect Landlord's award or the award of any and all ground and underlying lessors and mortgagees. 19. FIRE OR OTHER CASIIAI TV A Should the Demised Premises (or any part thereof) be damaged or destroyed by fire or other casualty insured under the standard fire and insurance policy, with approved standard extended coverage endorsement applicable to the Demised Premises, Landlord shall, except as otherwise provided herein, and to the E~xtent it recovers proceeds from such insurance, repair and/or rebuild the same with masonable diligence. Landlord's obligation hereunder shall be limited to the building and improvements originally provided by Landlord when the Demised Premises was originally constructed. Landlord shall not be obligated to repair, rebuild or replace any property belonging to Tenant or any improvements to the Demised Premises furnished by Tenant. From the date of such casualty until the Demised Premises are so repaired and restored, Minimum Rent payments and other charges and items of additional rent payable hereunder (except for any proportionate share of taxes due under Article 7 hereof, any rent due under Article 4 hereof and under the Utilities Exhibit or the Environmental Services Exhibit attached hereto) shall abate in such proportion as the part of the Demised Premises thus destroyed or rendered untenantable bears to the total Demised Premises, but only to the extent of the proceeds actually received by Landlord under the rent insurance policy. Unless this Lease is terminated by Landlord as hereinafter provided, Tenant shall repair, redecorate and re-fixture the Demised Premises and restock the contents thereof in a manner and to at least a condition equal to that existing prior to such damage or destruction, and the proceeds of all insurance canied by Tenant on its property, decorations and improvements as well as fixtures and contents in the Demised Premises shall be held in trust by Tenant for such purposes. - 26- . . B. Notwithstanding anything to the contrary contained in the preceding subsection A or elsewhere in this Lease, Landlord at its option may terminate this lease on thirty (30) days' notice to Tenant, given within ninety (90) days after the occurrence of any damage or destruction if: (1) the Demised Premises be damaged or destroyed as a result of a risk which is not covered by Landlord's insurance; or (2) the Demised Premises 'be damaged and the cost to repair the same shall be more than twenty-five percent (25%) of the cost of replacement thereof; or (3) the Dernised Premises be damaged ,during the last three (3) years of the term; or (4) the building of which the Demised Premises is a part shall be , damaged to the extent of twenty-five percent (25%) or more of- the then monetary value thereof (whether the Demised Premises be damaged or not); or (5) if any or all of the buildings or common areas of the Shopping Center arE! damaged (whether or not the Demised Premises are damaged) to such an extent that, in the sole judgment of Landlord, the Shopping Center cannot be operated as an integral unit. C. Except to the extent specifically provided for in this Lease, none of the rentals payable by Tenant, nor any of Tenant's other obligations under any provisions of this Lease, shall be affected by any damage to or destruction of the Demised Premises by any cause whatsoever, and Tenant hereby specifically waives any and all additional rights it might otherwise have under any law or statute. 20. BANKRUPTCY OR INSOI VENey If _ at any time prior to the date herein fixed as the commencement of the term of this Lease, or -at any time thereafter, there shall be filed by or against Tenant in any court pursuant to any statute either of the United States or of any state, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant's property, or if there is an assignment by operation of law, or if Tenant makes application to Tenant's creditors to settle or compound or extend the time for payment of Tenant's obligation, or if any execution or attachment shall be levied upon any of Tenant's property or the Demised Premises are taken or occupied or attempted to be taken or occupied by someone other than Tenant, then this Lease shall ipso facto terminate and be null and void; and, in any such event, neither Tenant nor any person claiming through or under Tenant or by virtue of any statute or of an order of any court shall be entitled to possession of the Demised Premises. - 27-:- 21. WAIVER No waiver of any covenant or condition or of the breach of any covenant or condition of this Lease shall be taken to constitute a waiver of any subsequent breach of such covenant or condition, nor to justify or authorize the nonobservance on any other occasion of the same or any other covenant or condition hereof; nor shall the acceptance of rent or other payment by Landlord at any time when Tenant is in default under any covenant or condition hereof, be construed as a waiver of such default or of Landlord's right to terminate this Lease on account of such dE~fault; nor shall any waiver or indulgence granted by Landlord to Tenant be taken as an estoppel against Landlord, it being expressly understood that if at any time Tenant shall be in default in any of its covenants or conditions hereunder, an acceptance by Landlord of rental or other payment during the continuance of such default or the failure on the part of Landlord promptly to avail itself of such other rights or remedies as Landlord may have, shall not be construed as a waiver of such default, but Landlord may at any time thereafter, if such default continues, terminate this Lease on account of such default in the manner provided for in this Lease. 22. PAST DUE RE=NT If Tenant shall fail to pay, when the same is due and pClyab1e, any Minimum Rent or any Percentage Rent or other amounts or charges to be paid to Landlord by Tenant, as provided in this Lease. such unpaid amounts shall bear interest from the due date thereof to the date of payment at the rate which is the lesser of eighteen percent (18%) per annum or the maximum interest rate permitted by law. Tenant shall, at no time, for any reason whatsoever, withhold the payment of rent or oth,sr charges provided for under the terms of this Lease from Landlord. All such payments shall at all times be paid directly to Landlord. 23. ACCORD AND SATISFACTION No payment by Tenant or receipt by Landlord of a lesser amount than the monthly rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment. without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy in the lease provided. - 28- , . In the event this Lease requires Tenant to submit payments monthly for items other than the Minimum Rent (examples: maintenance contributions, insurance payments and real . estate tax payments) and in the event Tenant submits a payment of less than the total combined amount of all of such payment?, then Landlord shall have the option to cred,it said payment towards any of said items it so desires notwithstanding any specification of Tenant. 24. DEFALJI T BY TENANT All ,:rights and remedies of Landlord herein enumerated shall be cumulative, and none shall exclude any other rights or remedies allowed by law. Tenant covenants and agrees that if: (1) ," Tenant shall fail, neglect or refuse to pay any installment of fixed Minimum Rent, additional rent or Percentage Rent at the time' and in the amount as herein provided I or to pay any other monies agreed by it to be paid promptly when and as the same shall become due and payable under the terms hereof, and if any such default should continue for a period of more than ten (10) days after written notice; or (2) Tenant shall abandon or vacate the Demised Premises or fail to keep the Demised Premises continuously and uninterruptedly open for business each business day or shall fail, neglect or refuse to ke~ep and perform any of the other covenants,' conditions, stipulations or agree~ments herein contained and covenanted and agreed to be kept and performed by it, and in the event any such default shall continue for a period of more than t\Nenty (20) days after notice thereof given in writing to Tenant by Landlord, provided, however, that if the cause' for giving such notice involves the making of repairs or other matters reasonably requiring a longer period of time than the period of such notice, Tenant shall be deemed to have complied with such notice so long as it has commenced to comply with said notice within the period set forth in the notice and is diligently prosecuting compliance of said notice or has taken proper steps or proceedings under the circumstances to prevent the seizure, destruction, alteration or other interference with said Demised Premises by n~ason of noncompliance with the requirements of any law or ordinance or with the rules, regulations or directions of any governmental authority, as the case may be; then Tenant does hereby authorize and fully empower said Landlord or Landlord's agent to cancel or annul this Lease at once and to re-enter and take possession of said Demised Premises - 29- immediately, and by force if necessary, without any previous notice of intention to re-enter and remove all persons and their property therefrom, and to use such force and assists in effecting and perfecting such removal of said Tenant as may be necessary and advisable to recover at once first and exclusive possession of all said Demised Premises'whether in possession of said Tenant or of third persons or otherwise, without being deemed guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used by Landlord, in which event this Lease shall terminate and Tenant shall indemnify the Landlord against all unavoidable loss of rent which Landlord may incur by reason of such termination during the residue of the term herein specified, including the loss of Percentage Rental. The Landlord may, however, at its option, at any time after such default or violation of condition or covenant, re-enter and take possession of said Demised Premises without such re-entry working a forfeiture of the rents to be paid and the covenants, agreements and conditions to bekept and performed by Tenant for the full term of this Lease. In such event, Landlord shall have the right, but not the obligation, to divide or subdivide the Demised Premises in any manner Landlord may determine and to lease or let the same or portions thereof for such periods of time and at such rentals and for such use and upon such covenants and' conditions as Landlord may elect, applying the net rentals from such letting first to the payment of Landlord's expenses incurred in dispossessing Tenant and the cost and expense of making such improvements in the Demised Premises as may...be...necessar.v..,jn.~der...tQ-ef.lable-l.-aR~Gr.Q-tG-r.elet~~Ae'same..afle.{e-tRe"l3ayment-of .., any brokerage commissions or other necessary expensI3s of Landlord in connection with such reletting. The balance, if any, shall be applied by Landlord from time to time on account of the payments due or payable by Tenant hen~under, with the right reserved to Landlord to bring such ,action or proceedings for the re~covery of any deficits remaining unpaid as Landlord may deem favorable from time to time, without being obligated to await the end of the term hereof for the final determination of Tenant's account. Any balance remaining, however, after full payment and liquidation of Landlord's account as aforesaid shall be paid to Tenant with the right reserved to Landlord at any time to give notice in writing to Tenant of Landlord's election to cancel and terminate this Lease and upon giving of such notice and the simultaneous payment by Landlord to Tenant of any credit balance in Tenant's favor that may at the time be owing to Tenant shall constitute a final and effective cancellation and termination of this Lease and the obligations hereunder on the part of either party to the other. Landlord, Tenant and Guarantor, if any, covenant and agree, because of the difficulty or impossibility of determining Landlord's damages, should Tenant (i) fail to take possession of and open for business in the Demised Premises in accordance with the terms of this Lease; or (ii) vacate, abandon or desert the Demised Premises; or (iii) cease operating - 30- Tenant's business therein (except where the Demised Premises are rendered untenantable by reason of fire, casualty or other causes beyond Tenant's control not resulting from negligent acts or omissions of Tenant or Tenant's employees, agents, contractors, licensees, concessionaires or invitees); or (iv) fail or refuse to maintain the business hours, days or nights or any part thereof as provided in this Lease, then, in any.. of such events (hereinafter referred to as "failure to do business"), Landlord, at its option, shall have the right: (a) to collect not only the fixed annual Minimum Rent and other rentals and charges herein reserved, but also to collect an additional amount equal to the total of: (1) one and one-half times the greatest amount of any Percentage Rent payable by Tenant in any lease year as provided herein, plus (2) one-half of the fixed annual Minimum Rent herein reserved, plus (3) one-half of all other rentals and charges herein reserved: said additional amount shall be payable for the period of Tenant's failure to do business, computed at a daily rate each and every day during such period, and such additional amount shall be deemed to'. be liquidated damages for such period: and/or (b) to treat such failure to do business as a default. As used herein, the words "vacate", "abandon" or "desert" shall not be defeated because Tenant may have left all or any part of its trade fixtures or other personal property in the Demised Premises. . Landlord may, at its option, while such default or violation of covenant or condition continues, and after ten (10) days' notice of its intention so to do, declare all the Minimum Rent reserved for the full term of this Lease remaining unpaid due and payable at once; and Tenant does hereby empower any Attorney of any Court of Record in the State of Pennsylvania or elsewhere to appear for it and waive thl3 issuance and service of process and confess a judgment against it for the whole or any part of said rent and thereafter to release all errors and warrant all rights of appeal and stay of execution. The initial exercise or use of this warranty of attomey shall not exhaust the same, but the same may be used and exercised without limitation as often as necessity for the use of the same may arise. The exercise or use of this warrant of attorney shall not prevent Landlord from subsequently terminating this Lease, by giving notice to Tenant of its election so to do and upon its tender to Tenant of a sum equal to the amount, if any, paid by Tenant for rents accruing after the date of such termination. - 31 - In addition to the other rights granted to Landlord hereunder, Landlord may, at its option, while such default or violations of covenant or condition continue(s), and after ten (10) days' notice of its intentions to do so, confess judgment Ifor possession of the Demised Premises and Tenant does hereby empower any attorney of any court of record in the State of Pennsylvania or elsewhere to appear for it and waive the issuance and service of process and confess a judgment in ejectment. In the event of a d~fault by Tenant hereunder, and if as 81 result of such default Landlord places Tenant's account with a collection agency, lenant agrees to reimburse Landlord's costs, expenses and commissions pertaining to Tenant's account with said collection agency. Also in addition to the other rights granted to Landlord under this Lease, Tenant agrees that in the event that the amounts due Landlord under this Lease are collected by. law or through an attorney at law, and judgment is entered in favor of Landlord against" Tenant, whether by confession or otherwise, then T eflant agrees to pay all costs of collection, including attomey's fees in the amount of ten percent (10%) of the judgment or Five Hundred Dollars ($500.00), whichever is the greater amount. If this Lease is terminated by Landlord pursuant to this Article, Tenant, nevertheless, shall remain liable for any rental or additional charges or damages which may be due or sustained prior to such termination and reasonable costs, fees and expenses incurred by Landlord in pursuit of its remedies hereunder. In the event of reletting, Landlord may apply the rent therefrom first to the payment of Landlord's reasonable expenses, including but not limited to, attomey's fees incurred, . expense of reletting, repairs, brokerage fees, subdividing, renovation or alteration of the Demised Premises and then to the payment of rent and all other sums due from Tenant .hereunder, and Tenant shall remain liable for any defickmcy. 25. SUBORDINATION This Lease, and all rights of Tenant hereunder, are and shall be subject and subordinate in all respects to all mortgages which now or hereafter affect the Shopping Center or any part thereof, whether or not such mortgages also cover other lands and/or buildings, to each and every advance made or hereafter to be made under such mortgages, and to all renewals, modifications, replacements and extensions of such mortgages and spreader and consolidations of such mortgages, unless otherwise specifically provided in such mortgage. The provisions of this paragraph shall be self-operative and no further - 32- , . instrument of subordination shall be required. In confirmation of such subordination, Tenant shall promptly execute and. deliver any instrument that Landlord or the holder of any such mortgage or any of their respective s~ccess()rs in interest may reasonably request to evidence such subordination. Tenant covenants and agrees to execute and deliver, upon demand, such further instrument or instruments subordinating this Lease on the foregoing basis to the lien of any such mortgage or mortgages as shall be desired by L.andlord and any mortgagees or proposed mortgagees, and hereby irrevocably appoints Landlord the attomey-in-fact of Tenant to execute and deliver such instrument or instnJments for and in the name of Tenant, in the event Tenant shall fail to execute such instrument or instruments within ten (10) days after written notice to do so. Tenant shall, in the event of the sale or assignment of Landlord's interest in the Shopping Center, or in the event of any proceedings brought for the foreclosure of, or in the event of the exercise of the power of sale under any mortgagE! covering the Shopping Center, or in the event .of the enforcement of the indebtedness secured thereby, attom to and recognize such purchaser or mortgagee as landlord under this Lease, and in any such events, Landlord named herein shall not thereafter be liable on this Lease. No payment of more than one month's rent shall be valid or binding upon the holder of any mortgage covering the Demised Premises unless l3xpressly approved in writing by' such holder Gr given as a security deposit and not prepaid rent. If the holder of record of any mortgage covering the Demised Premises shall have given prior written notice to Tenant that it is the holder of said mortgage and if such notice includes the address of which notices to such holder am to be sent, then, in the event of any act or omission of Landlord which would give Tenant the right, immediate or after lapse of a period of time, to cancel or terminate this Ll3ase or to claim a partial or total eviction, Tenant shall not exercise s'uch right (i) until it has given written notice of such act or omission to the holder of such mortgage, and (ii) until a reasonable period of time for remedying such act or omission shall have elapsed following the giving of such notice and following the time when such holder shall have become entitled under its mortgage to remedy the same (which reasonable period shall in no event be less than sixty {60} days), provided such holder shall with due diligence give Tenant written notice of its intention to, and commence and continue to remedy such act or omission. - 33- 26. MORTGAGEF'S APPROVAL If any mortgagee of the Shop.ping Center requires any modification of the terms and provisions of this Lease as a condition to such financin9 as Landlord may desire, then Landlord shall have the right to cancel this Lease if Tenant fails or .refuses to approve and execute such modification(s) within thirty (30) days aft,er Landlord's request therefor, provided said request .is made at least thirty (30) days prior to delivery of possession. Upon such cancellation by Landlord, this Lease shall be null and void and neither party shall have any liability either for damages or otherwise to the other by reason of such cancellation. In no event, ho~ever, shall Tenant be required to agree, and Landlord shall not have any right of cancellation for Tenant's refusal to agree, to any modification of the provisions of this Lease relating to: the amount of rent or other charges reserved herein; the size and/or location of the Demised Premises; the duration and/or commencement date of the term; or, reducing the improvements to be made by Landlord to the Demised Premises prior to delivery of possession. 27. TFNANT'S CFRTIFICATE Tenant agrees, at any time within ten (10) days of Landllord's written request, to execute, acknowledge and deliver to Landlord a written statement in form requested by Landlord, certifying that this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full force and effl3ct as modified and stating the modifications), and the dates to which the Minimum Remt and other charges have been paid in advance, if any, or whether or not there are then existing any setoffs or defenses against the enforcement of any of the agreements, tenl1S or conditions hereof upon the part of Tenant to be performed or complied with (and, if so, specifying the same), and such other matters as may be requested by Landlord, it being intended that any such statement delivered pursuant to this clause may be relied upon by any prospective purchaser or mortgagee of the Shopping Center or any part thereof. Tenant's failure to comply with this provision within the above time period shall be a default under the Lease. 28. NO OPTION The submission of this Lease for examination does not constitute a reservation of or option for the Demised Premises and this Lease becomes effective as a Lease only upon execution and delivery thereof by Landlord and Tenant. - 34- 29. FORCE MA.JEURE Inthe event that either party hereto shall be delayed or hindereo in or prevented from the performance of any act required hereunde"r by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the pe!riod of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. The provisions of this Article shall not operate to excuse Tenant from prompt payment of Minimum Rent, Percentage Remt, additional rent or any other payments required by the terms of this Lease. 30. RFLA TIONSHIP OF PARTIES Nothing contained in this Lease shall be deemed or construed by the parties hereto or by any third party to create the relationship of principal and ,agent or of partnership or of joint venture or of any association whatsoever between Landlord and Tenant." it being expressly understood and agreed that neither the computation of rent nor any other provisions contained in this Lease nor any act or acts of the parties hereto shall be deemed to create any relationship between Landlord and Tenant other than the relationship of landlord and tenant. 31. EXClJLPA TION OF I ANDI ORD Anything to the contrary in this Lease notwithstanding, the covenants contained in this Lease to be performed by Landlord shall not be binding personally, but instead said covenants are made for the purpose of binding only the fee simple or leasehold estate which landlord owns in the Demised Premises. Tenant shall look solely to the equity of Landlord in the Shopping Center property for the satisfaction of the remedies of Tenant in the event of a breach by Landlord. - 35- , . 32. TENANT DEFINFD The word "Tenant" shall be deemed and taken to mean E!ach and every person or party mentioned as the Tenant he'rein, be the same one or more; and, if there 'shall be more than one Tenant, any notice required or permitted by the terms of this Lease may be given by or to anyone thereof and shall have the same force and effect as if given by or to all thereof. The use of the neuter singular pronoun to refer to Tenant shall be deemed a proper reference even though Tenant may be an individual, a partnership, a corporation, or a group of two or more of any of the same. The necessary grammatical changes required .to make the provisions of this Lease apply in the plural sense where there is more than one Tenant and to either corporations, partnerships, or individuals, males or females, shall in all instances b~ assumed as though in each case fully expressed. 33. CAPTIONS AND ARTICL F NUMBERS The captions, article numbers and section numbers appearing in this Lease are inserted only as a matter of convenience and in no way definE!, limit or describe the scope or intent of such articles or sections of this Lease nor in any way affect this Lease. . 34. NOTICFS Any bill, statement, notice or communication which Landlord or Tenant may desire or be required to give to the other party shall be in writing and shall be sent to the other party by registered or certified mail to the address specified in the opening paragraph of this Lease, or to such other address as either party shall have designated to the other by like notice, and the time of the rendition of such shall be whan same is deposited in an official United States Post Office, postage prepaid. All payments of rent or other charges shall be sent by Tenant to Landlord at the address specified in the first paragraph of this Lease or such other address as the Landlord may, in writing, designate. - 36- , . 35. RIGHT OF REDEMPTION COUNTERCLAIM AND JURY TRIAL Tenant, for itself and for all persons claiming through or under it, hereby expressly waives any and all rights which are or may be conferred upon Tenant by any present or future law to redeem the said Demised Premises, or to any new trial in any action of ejection under any provision of law, after reentry thereupon, or upon any part thereof, by Landlord, or after any warrant to dispossess or judgment in ejection. If Landlord shall acquire possession of the said premises by summary proceedings, or in any other lawful manner. without judicial proceedings, it shall be deemed a reentry within the meaning of that word as used in this Lease. In the event that Landlord commences any summary proceedings or action for nonpayment of rent or other charges provided for in this Lease, Tenant shall not interpose any counterclaim of any nature or description in any such proceeding or action. Tenant and Landlord both waive a trial by jury of any or all issues arising in any action or proceeding between the parties hereto or their successors, under or connected with this Lease, or any of its provisions. 36. BROKER Tenant covenants, warrants and represents that there was no broker instrumental in consummating this Lease, and that no conversations or prior negotiations were had with any broker conceming the renting of the Demised Pmmises. Tenant agrees to hold Landlord harmless against any claims for brokerage commission arising out of any conversations or negotiations had by Tenant with any broker. 37. GOVERNING LAW Any conflict of laws question conceming this Lease shall be govemed by and construed in accordance with the applicable laws of the state specified as Landlord's address in the opening paragraph of this Lease. This provision shall not be interpreted, however, as requiring that any suit or cause of action arising out of this Lease take place only in the aforementioned state. - 37 - I. , . 38. INVALIDITY OF PARTICULAR PROVISIONS If any term or provIsIon 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 or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be: enforced to the fullest extent permitted by law. 39. PROVISIONS BINDING Except as herein otherwise expressly provided, the terms and provisions hereof shall be binding upon and shall inure to the benefit of the heirs, executors., administrators, successors and permitted assigns, respectively, of Landlord and Tenant. Each term and each provision of this Lease to be performed by Tenant shall be construed to be both a covenant and a condition. The reference contained to sllccessors and assigns of Tenant is not intended to constitute a consent to assignment by Tenant, but has reference only to those instances in which Landlord may have given written consent to a particular assignment. 40. TENANT SHAll DISCHARGF All L1FNS Tenant covenants and agrees that it shall promptly pay all contractors and materialmen for any work, or improvements that Tenant or its agents have contracted for in the Demised Premises, so as to minimize the possibility of a lien attached to the Demised Premises, and should any such lien be made or filed, Tenant shall bond against. or discharge the same within ten (10) days after written request by Landlord. If Tenant fails to comply with the foregoing provisions, Landlord shall have the right but not the obligation to (i) either discharge or bond any such lil3n or encumbrance and Tenant agrees to reimburse Landlord promptly upon demand 'for all costs, expenses and other sums of money in connection therewith, as additional rental, with interest thereon at the rate of the prime rate of The Chase Manhattan Bank, New York office, plus two percent (2%) per annum or the highest rate permitted by law or (ii) declare the Lease in default and pursue any remedies available to it hereunder or by law. - 38 - , r I' In addition, Tenant shall, prior to commencement of work by Tenant, provide a performance bond and a payment bond for labor and materials furnished to the Demised Premises. In the event Tenant is performing any construction in the Demised Premises which is. subject to a lien by a contractor or materialmen and the law of the state in which the Demised Premises are located provides for the filing of a lien waiver or no lien stipulation which would prevent a lien from being filed by a contractor or materialmen, then, Tenant agrees to execute a lien waiver or no lien stipulation (designating Landlord as Owner and Tenant as Contractor) and furnish it to Landlord to be fill~d in the proper recording office of the appropriate political subdivision. ~ 41. FA~FME=NTS AND OTHER PROVISIONS FOR PERIPHFRAL I AND Tenant acknowledges that Landlord is or may be the owner of land adjacent and peripheral to the Shopping Center and/or land within the Shopping Center reserved for future development ("out parcels"), and that such land may be developed in the future by Landlord, future owners, or others, with the construction of buildings, single and/or multiple story, and other improvements, and Tenant acknowledges and agrees that the owner(s), present and future, occupants, employees and invitees of such peripheral and adjacent land and/or out parcels may be given the right by Landlord to use the parking areas of the Shopping Center and shall have easements of access, ingress and egress and utility easements over, under, through and upon thE3 common areas of the Shopping Center for the benefit of such peripheral and adjacent land and/or out parcels, and such easements shall be, automatically, and without any further action or documentation, upon recording of the same, superior to any rights granted hE3reunder to Tenant to the exterior common areas of the Shopping Center. Such out parcels of land may be treated for all purposes of this Lease as separate and apart from the Shopping Center, and, except as otherwise provided herein, shall not be subject to nor restricted by any provision hereof. 42. UTiliTIES A. From and after Tenant's Work Commencement Date or Term Commencement Date (whichever is sooner), Tenant agrees to pay as and when the same become due and payable, all water rents, rates and charges, aU SE!Wer rents and all similar charges, and all charges for electricity, gas (if available), heat, steam, hot water, and other utilities .39 - . . supplied to the Demised Premises and anything else supplied' by any agency or public authority, or bt landlord to Tenant for the use or occupancy of the Demised Premises. All meters and tap in fees are Tenant's responsibility. B. In no event shall Landlord be liable in damages or otherwise for the quality, quantity, failure or interruption of such services to the Demised Premises nor shall any such interruption or termination relieve Tenant of the performance of any of its obligations hereunder. C. Tenant shall pay its pro rata share (as defined in Article 7 of the Lease) of any fire service charges, standby water fees, fire protection services, or other charges levied by the municipality or other governmental unit and shall pay its pro rata share of the installation of fire detection devices and/or smoke detHction devices required by any governmental unit or Fire Underwriters. D. Tenant, at its own cost, will obtain natural gas from the Distributor serving the area for the purposes of Tenant's space heating needs and for any gas~fired appliance Tenant may have. Tenant will arrange its propane gas service and usage to be directly billed to Tenant by the Distributor serving the area. Tenant, at its own cost, will provide all gas piping, valving and connection to the heater system of the air conditioning unites) serving the Demised Premises. Said piping, valving and connl~ction shall be sized by Tenant adequately to provide for Tenant's heating requirements. E. All utility services provided by the Landlord and charged to the Tenant shall also incorporate a six percent (6%) allowance, representing Landlord's expenses of surveys, calculations, bifling and administration of the service. 43. COST OF LIVING Ar1JlJSTMFNT As used herein, "Price Index" shall mean the Consumer Price Index, All Urban Consumers (U. S. City Average) all items, 1982-1984=100, as compiled and published by the Bureau of Labor Statistics, United States Department of Labor, as revised from time to time for base averages. If such Price Index should in the future be compiled on a different basis, appropriate adjustments will be made for purposes of computations under this clause. If the United States Department of Labor nD longer compiles and publishes such Price Index, any comparable i.ndex published by any other branch or department of - 40- . . the Federal Government shall be used for the purpose of computing the adjustments herein provided for, and if no such index is compiled and published by any branch or department of the Federal Government, the statistics refl€~cting cost of living changes as compiled by any institution, organization or individual generally recognized as an authority by financial and insurance institutions shall be used as a basis for such adjustments. Recognizing the length of the term of this Lease and inflationary tendencies in recent years,. . f (a) (i) (b) The same formula shall be used in adjusting the annual Common Area . Maintenance Charge for the second full calendar year of this Lease and each year thereafter during the term of this Lease (and options, if any),__ ,~~ _ \ P' _ -= . ~"'"'.:: .' -; '1;': ~':~" -;' t ~,....?'. I- -:: r _ " . . P':"_ -; ~' ,. ':- . ~ It I . __:: ~:~:~~~~3 w_ ~"""',","\71.~' ,r '{'l./ ~.. ,~..&- ... (c) Notwithsta~ontained herein to the contrary i-- ~a1J1t..,.~_ T~~ I ~~~~YlllM_ - 41 - . . ,!> ~ ,',:;-",'.' ~,~:~+~;;;:'; 'f:' :~:r/~. !':t'm~ 1:;;?~'-:. C ~:c.,<--:"~.:::,r" ( ,';j,,' :-;-:.?:.'.;::~ i ,. ft:~~~0Li:ti>~, --- 44. fAilURE OF TFNANT TO OPFRATE It is also expressly understood and agreed that Percentage Rent expected from Tenant will not be affectively generated unless the Tenant continuously operates its business during all hours required by this Lease. In the event Tenant fails to do so, Tenant shall pay to Landlord, as liquidated damages and not as a penalty, an amount equal to $100.00 per hour for each hour or fraction of an hOllr that Tenant is not open, in addition to all other amounts due and payable' under the Lease. Notwithstanding the payment of such damages, as Tenant's failure to ope~rate also causes damages to other tenants and to the public image of the Shopping Center, if such event reoccurs after written notice from Landlord, Landlord shall have the right to'treat such event as a Deliberate Event of Default hereunder. 45. FNTIRE AGRFFMFNT This Lease and the Exhibits, Riders and Addenda, if any, attached hereto and forming a part hereof, set forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant conceming the Demised Premises and there are no covenants, provisions, agreements. conditions or understandings, either oral or written. between them other than are herein set forth. No agent, representative. salesman or affiliate of Landlord hereto has authority to make or has made any statement, agreement or representation, either oral or written, in connection herewith, modifying, adding, deleting or changing the terms and conditions herein set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by them. It is understood and agreed that Tenant will comply with all the covenants of this Lease without regard to compliance or noncompliance by any other tenant in the Shopping Center with any covenant which may be contained in such other' tenant's lease. - 42- . . IN TESTIMONY WHEREOF, Landlord and Tenant have caused this Lease to be signed upon the day and year first above written. SignAd in the presence of: LANDLORD: M.J. COMMUNITY CENTER, LLC . D'-{: KftJ5A cAlU..Lsl..~ A$SOCrtTT€~ L. fJ. ,6/" 13"1 ~ KZ,.....),SA NUl) J'ti:ILTl~c;.. LLC. I C,/r? By ~ey Mer lagi~r~kfflber ~~ I i:>rrJ/ Witne55! Attest: TFNANT: WATCHUNG INTERNATIONAL LLC By ~ -fi j::::l (SEAl) ~~ 1-1 DN t. '-I. W frt-l V- Title '(\~ By ~ (SFAI) ~I"~ Uv-. (~~ ct..-. ) Title t~1l ~ . - 43- COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cam brio itI\ On this ~ day of , 2003, personally appeared before me, the undersigned officer, a Notary Publi in and for said County and State, BRUCE HANEY who acknowledgeq himself to be the Managing Member of M J COMMUNITY CENTER, LL.C, a limited liability company, and that he as stich Managing Member, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of said partnership by himself as General Partner thereof. ) ) ) To-wit: In witness whereof, I hereunto set my hand and official s€:al. ~~ NOTARY PUB My commission expires: NOTARIAL SEAl Melinda L. Harrison. Notery Public: Johnslown, Cambria County, PA My Commission Expires June 28, 2004 COUNTY OF ) ) ) To-wit: STATE OF ..,). On this ~ q day of -.J J \ L.( , 2003, personally appeared before me, the undersigned officer, a Notary Public in and for said County and State, -ZJ./~NCr y. Wf\"tuG- of WATCHUNG INTERNATIONAL llC, a New York limited liability. company, and that he as such officer, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by himself as ""'4\ r-J ~ wfC- thereof. In witness whereof, I hereunto set my hand and official seal. ~c y com ssion expires: f1..-1 c., ::LD 0 " NolariaJ Seal Jat M. Jordan, Nota1y Public FIIchIand Twp., Cambria Cocny MyCom.,~ ExpiI9S Dec.16.2006 MenDer, P8IYIS)lIvanIa Asscx:iation Of Notaries GUARANTY FOR VALUE RECEIVED, and in consideration for, and as an inducement to M J COMMUNITY CENTER, LLC ("Landlord") to enter into the foregoing Lease with WATCHUNG INTERNATIONAL LLC("Tenant"), a New York limited liability company dated the y+~ day of AUClu.sJ , 2003, ZHONG Y WANG("Guarantor") with an address o~1n Avenue, Brooklyn, New York, 11220, hereby guarantees to Landlord, its legal representatives, successors and assigns, the payment of the Minimum Rent, Additional Rent and all other payments to be made by Tenant under said Lease and the full performance and observance by Tenant of all the other tem1s, covenants, conditions and agreements (including the Rules and Regulations) therein provided to be performed and observed by Tenant, for which the Guarantor shall be jointly and severally liable with the Tenant, without requiring any notice of non-payment, non- performance or non-observance, or proof of notice or demand. whereby to charge the Guarantor, all of which the Guarantor hereby expressly waives, and the Guarantor expressly agrees. that Landlord may proceed against the Guarantor separately or jointly before or after or simultaneously with proceeding against Tenant for default and that this guaranty shall not be terminated, affected or impaired in any way or manner whatsoever by reason of the assertion by Landlord against Tenant of any of the rights or remedies reseNed to Landlord pursuant to the provisions of the said Lease, or by reason of summary or other proceedings against Tenant, or by the omission of Landlord to enforce any of its rights against Tenant, or by reason of any extension of time or indulgence granted by Landlord to Tenant. The Guarantor further covenants and a\~rees (1) that he will be bound by all the provisions, terms, conditions, restrictions and limitations contained in said Lease, the same as though Guarantor was namHd therein as Tenant; and (2) that. this guaranty shall be absolute and unconditional and shall remain and continue in full force and effect as to any renewal, extension, option, amendment, additions, assignment, sublease, transfer, or other modification of said Lease, whether or not Guarantor shall have knowledge or have been notified of or agreed or consented to any such renewal, extension, option, amendment, addition, assignment, sublease, transfer, or other modifications of said lease. Each signatory hereto shall be individually bound by the terms of this 9uarantY whether or not any other party or person has executed the same. If Landlord at any time is compelled to take any action or proceeding in court or otherwise to enforce or compel compliance with the terms of this guaranty, the Guarantor shall, in addition to any other rights or remedies to which Landlord may be entitled hereunder or as a matter of law or in equity, be obligated to pay all costs, including attorneys' fees, incurred or expended by Landlord in connection therewith. All obligations and liabilities of Guarantor pursuant to this guaranty shall be binding upon the heirs, personal representatives, and assigns of the Guarantor signatory. 1. As further inducement to Landlord to make and enter into said Lease, and in consideration thereof, the Landlord and the Guarantor covenants and agrees that in any action or proceeding brought on, under or by virtue of this guaranty, the Guarantor shall and hereby does' waive trial by jury. This guaranty shall be govemed by and construed in accordance with the laws of the state in which the property demised undler the said Lease is located. WITNESS the following signature this . d'/(Jt.- day of -JJ /'1 .2003, p-~ V~ GUARANTOR: ZHONG Y. WANG ~ ~II J~ Zhong Y. 'Iv ang A TTEST/WITNESS: DOLLARS & CENTS Carlisle Commons Space #600 062503 EXHIBIT "A" AS IS W/REMODEL Tenant has inspected and accepted the Demised Premises in an "as is" condition. Tenant will be required to remodel the Demised Premises, . in accordance with the plans and specifications to be prepared by the Tenant and approved by the Landlord. In the event new tenants are leasing finished shops with cosmetic remodeling work limited to painting, new carpeting, fixturing and general cleaning, et cetera, tenant may notify Landlord in letter format the cosmetic changes proposed; however, the storefront signage drawings must be submitted for approval prior to installation. All Tenant work will be in compliance with all applicable building codes and regulations. Tenant will furnish to Landlord all certificates and approvals that. are obtained by the Tenant, with respect to the work being performed by the Tenant, on the Demised Premises. Tenant may utilize any existing materials or components that exist in the Demised Premises. All existing electrical, mechanical, sprinkler, plumbing and fire alarm compl::>nents can be utilized provided that they are in good working order. Landlord will not be responsible for any patent or latent de:Eects. . If Tenant shall neglect, fail or refuse to diligently proceed with H"and"'~compTE!tE!"...tt:s-""'w6fK;'" ""tl'H~n"-r.;i:Uld16r-d;' ...iff..... a:aa1't:"iofi- ~'t6'. otner~'"'' . remedies it may have and after fifteen days notice to Tenant, may declare this Lease cancelled and of no force and effect. Tenant will furnish one set of rE~producible plans and specifications incorporating Tenant's remodeling obligations, .for Landlord1s written approval, (unless performing cosmetic remodeling only), within thirty days after the execution of this Lease. Landlord will have thirty days to revie'W' the Tenant plans and specifications and will notify Tenant, in writing, if the plans were approved or rejected. If Tenant pl2lns are rejected, Tenant will have ten days to make necessary corrections to the plans and/or specifications and resubmit them for review by Landlord. Upon receipt of approved plans and specifications from Landlord, Tenant will diligently proceed with and complete the remodeling of the Demised Premises within ninety days; from the approval of Landlord. - 1 - Start of Tenant construction and/or opening for business in the Demised Premises by Tenant shall constitute an acceptance of the Demised Premises and an acknowledgement by the Tenant that the Demised Premises are in the condition required under this Lease. The Landlord will provide no additional work in the Demised Premises. Prior to the start of any work or mobili:;:ation on this project, the Tenant's contractor will provide the following (unless performing cosmetic changes only) : 1. Landlord approved working drawings 2. Building Permit 3. Contractor's License 4. Certificate of Insurance naming Landlord and Zamias Services Inc as additional insured 5. A security deposit in the amount of $1,000.00 made payable to the Landlord. This deposit is refundablE~ pending review of the project by the Landlord, no contractor responsible damage is present, the Landlord receives the Final Certificate of Occupancy and the Landlord receives the Final Lien Waiver. 6. Contractor must meet the Landlord IS representative to review all property construction requirements. - 2 - Revised 3/18/02 CARLISLE COMMONS Exhibit "C" SIGN CRITERIA Tenant agrees that it will not erect any signs without first obtaining Landlord's approval as to size, color, type and location of the permitted signs, and Tenant agrees that no sign will be erected unless it meets the standards set forth herein. Tenant agrees not to display any banners, pennants, search lights, window signs, balloons, or similar temporary advertising media. Tenant agrees to maintain its signs in a good state of repair and save the Landlord harmless from any loss, cost or damage as a result of the erection, maintenance, existence or removal of the same and shalll repair any damage which may have been caused by the erection, existence, maintenance or removal of such signs. Upon vacating the Demised Premises, Tenant agrees to remove all signs and repair all damage caused by such removal. Tenant shall obtain all permits and licenses for its sign{s). Tenant shall not exhibit or affix any other type of sign, decal, advertisement, notice or other writing, awning, antenna or other projection to the roof or the outside walls or windows of the Demised Premises or the building of which the Demised Prem"ises is a part, without Landlord's approval. Tenant further agrees that no advertising material of any kind except temporary price tags related to merchandise on display shall be placed within four (4) feet of any customer door or building line of the Demised Premises or on the surface of any display window or customer door. All window display advertising material and signs shall be in keeping in character and standards with the improvements within the Shopping Center as determined by Landlord. Specification!; : 1. The advertising or informative content of all si~lns shall be limited to letters designating the store name and/or type of store (which such designation of the store type shall be by general descriptive terms and shall not include any specification of the merchandise offered for sale therein or the services rendered therein) and shall contain no advertising devices, slogans, symbols or marks (other than the store name and/or type of store, as aforesaid, and other than crests and corporate shields which shall be permitted if less than 36" in width and height). Page -1- of Exhibit "e" .. Revised 3/18/02 2. The letters on all signs shall be script or individual block type. No box signs will be permitted. The size of the letters shall be in proportion to the size of the sign as determined in accordance with the provisions of paragraph 5.D. of this Exhibit and the letters shall be internally illuminated with translucent face, the lamps therefore being contained wholly within the depth structure of the letters. 3. The character, design, color and layout of all signs shall be subject to Landlord's approval which shall not be unreasonably withheld to !the extent the sign in question complies with the criteria set forth in this Exhibit. 4. Except for small scale "signature signs," as provided in paragraph 7.C. of this Exhibit, no occupant shall install more than one (1) sign; however, an occupant of a comer store may have one (1) sign on each facade thereof. 5. All signs shall be in accordance with the following requirements: A. The sign and any part or parts thereof, except as otherwise provided in subparagraph C of this paragraph, and in subparagraph C of paragraph 7, shall be located within the physical limits of the storefront of the Demised Premises of the occu'pant and not less than 8'-0" above the finished surface of the walkway adjacent to such premises. B. No sign or any part or parts thereof shall be located on the roof of the Shopping Center. C. No sign or any part or parts thereof shall project beyond the vertical neutral strip of the storefront or, if there are no neutral strips, then more than 6" beyond the storefront subject, however, to paragraph 7, subpara~lraph C. D. The size of all signs except department store signs shall be limited. The scale and concept of the Shopping Center requires the use of signs which are not larger than necessary. Each party's signs shall be located within the limits of its respective storefront and shall not project more than six inches; (6") beyond the storefront and shall conform to the following maximum proportional height criteria: (1) UP to 30' storefront: (2) 30' to 60' storefront: (3) 60' and over: 18" capitals; 12" body. 24" capitals; 18" body. 30" capitals; 24" body. Page -2- of Exhibit "C" Revised 3/18/02 In addition to complying with the above criteria, signs in the enclosed Shopping Center shall be limited in length to 70% of each frontage on the Shopping Center, and sh~1I in no case exceed a length of thirty feet (30'-0"). Per the Borough of Carlisle the total area of the sign shall not exceed one (1) square foot for each one (1) linear foot of the building front, side or rear upon which the sign or signs are erected, except that no building shall be limited to less than thirty-five (35) square feet in total sign area for each building front, side or rear. In no event, shall the total sign area on each building front, side or rear exceed fifteen percent (15%) of the area of the building face upon which said sign is mounted. E. No sign shall exceed a maximum brightness of 100 foot lamberts. F. All signs shall be fabricated and installed in compliance with all applicable building and electrical codes and shall bear a U.L. Label. G. Painted or printed signs on the exterior sUlface of any building shall be prohibited except small scale signs relative to stom name and stating store hours which are neatly lettered. on the glass of the stofl9front but subject to Landlord's approval. In addition, any non-customer door for receiving merchandise may have in two inch (2") block letters. the name of the department store or tenant. 6. The fabrication, installation and operation of all signs shall be subject to the following restrictions: A. Exposed neon will be permitted, however, fluorescent and/or incandescent tubing or lamps, raceways, ballast boxes and/or ele~ctrical transformers, crossovers, conduit and/or sign cabinets shall not be permitted nor shall translucent sides of sign letters be permitted.. . B. Intentionally Omitted. C. The name and/or stamp of the sign contractor or sign company or both shall not be exposed to view. 7. The following types of signs are prohihited: A. .Paper signs and/or stickers utilized as signs. B. Signs of a temporary character or purpose, irrespective of the composition of the sign or material used therefore. Page -3- of Exhibit "C" ,I" Revised 3/18/02 C. Except as set forth in paragraph 5.G above, painted or printed signs, except however, one (1) non-illuminated, small-scale "signature sign" which is lettered on the glass portion of a storefront of an occupant and/or affixed to such storefront surface provided such sign does not project more than two inches (2") from the storefront surface. D. Outrigger signs. E. Moving signs. F. Pylon signs. NOTE: Sign standards for major department stores and stores in open air shopping centers may deviate from some or all of the foregoing standards, restrictions and prohibitions; however, tenants of stores in open air shopping centers may not erect any signs without first obtaining Landlord's approval as to SiZE!, color, type and location of the permitted signs. Page -4- of Exhibit "C" Exhibit B GUARANTY FOR VALUE RECEIVED, and in consideration for, and as an inducement to M J COMMUNITY CJ;NTER, LLC ("Landlord") to enter into the foregoing Lease with WATCHUNG INTERNATIONAL LlC(rrTenant"), a New York limited liability company dated the y-tt\ day of A~/lu.:. ~ , 2003, ZHONG Y WANG("Guarantor") with an address 0~6m Avenue, Brooklyn, New York, , 1220, hereby guarantees to Landlord, its legal representatives, successors and assigns, the payment of the Minimum Rent., Additional Rent and all other payments to be made by Tenant under said Le:ase and the full performance and observance by Tenant of all the other terms. covenants, conditions and agreements (including the Rules and Regulations) therein provided to be performed and observed by Tenant. for which the Guarantor shall be jointly and severally liable with the Tenant, without requiring any notice of non-payment; non- performance or nOIi-observance, or proof of notice or demand, whereby to charge the Guarantor, all of which the Guarantor hereby expressly waives, and the Guarantor expressly agrees. that Landlord may proceed against the Guarantor separately or jointly before or after or simultaneously with proceeding against Tenant for default and that this guaranty shall not be terminated, affected or impaired in any way or manner whatsoever by reason of the assertion by Landlord against Tenant of any of the rights or remedie~s reserved to Landlord pursuant to - the provisions of the said Lease, or by reason of summary or other proceedings against Tenant, or by the omission of Landlord to enforce any of its rights against Tenant, or by reason of any extension of time or indulgence granted by Landlord to Tenant. The Guarantor further covenants and agrees (1) that he will be bound by all the provisions, terms, conditions, restrictions and limitations contained in said Lease, the same as though Guarantor was named therein as Tenant; and (2) that this guaranty shall be absolute and unconditional and shall remain and continue in full force and effect as to any renewal, extension, option, amendment, additions, assignment, sublease, transfer, or other modi'fication of said Lease, whether or not Guarantor shall have knowledge or have beEln notified of or agreed or consented to any such renewal, extension, option, amendment, addition, assignment, sublease, transfer, or other modifications of said lease. Each signatory hereto shall be individually bound by the terms of this guarantY whether or not any other party or person has executed the same. If Landlord at any time is compelled to take any action or proceeding in court or otherwise to enforce or compel compliance with the terms of this guaranty, the Guarantor shall, in addition to any other rights or remedies to which Landlordi may be entitled hereunder or as a matter of law or in equity. be obligated to pay all costs, including attorneys' fees, incurred or expended by Landlord in connection therewith. All obligations and liabilities of Guarantor pursuant to this guaranty shall be binding upon the heirs, personal representatives, and assigns of the Guarcmtor signatory. 1. As further inducement to Landlord to makEl and enter into said Lease, and in consideration thereof, the Landlord and the Guarantor covenants and agrees that in any action or proceeding brought on. under or by virtue of this guaranty, the Guarantor shall and hereby does waive trial by jury. This guaranty shall be governed by and constru,ed in accordance with the laws of the state in which the property demised under the said Lease is located. WITNESS the following signature this . a1 at- day of ..J J If . 2003, A TTESTMlITNESS: P:~~ GUARANTOR: ZHONG Y. WANG ~ L{/ J~ Zhong Y. Wang EXhibit C #1332 P.002/004 Inland Mid-Atlantic Management ~ 7526 ~Iley DrIve, SUite P Hanover, MaIyIand 2'107& 41(H66-07OD Fax:41(H66-D724 "--- February 23, 2004 CERTIFIED :MAIL RETURN RECEIFT REQUESTED aDd First CJa.u Mailing Jonathan Chen Zwong. Y. Wang Wa1chung International, LLC 11 E. Broadway. Suite 6C New Yom, NY 10038 Re: Notice or Derault "oder Lease dated Augu...t 7. 1003 (the "Lea...e") by and between Watt'hang InteruatiouaJ LLC, a New York limited liabi6ty compll.DY. as TeuaDt aud bland Southeast Carlisle. DST, SlIc:ceSlCOr iD interest to M.J. COU1mllDfty C,coter, LLC, as Lsndlonl. Dear Tenant: Pursuant to the terms of the aoove-refercn<;cd Agreement, you ate required to pay Guaranteed Min imum Rent on or before the lit day of each and every calendar month. Yau are C1JITently in BIT:ars of said rental in the amount ofSl0,234.90. Additional Rent is abo outstanding in the amount ofS3,046.28 excluding late tees described hereafter. This tetter serves as Landlord's final demand fot' payment. If lnland docs not receive $13,281.18 by olose of business on Mar'Ch 5, 2004. it will file a complaint for SUInm8I)' ejectment and pos..~ion of the premises, along with an IUmon for all of the reIMdics available to Landlord. This pmod of time is not an additional time to cure the default. Pursuant to Tenant's failure to remit the payments due under the Lwc within the period of time provided ~in, Tenant is hereby notified that it is in ddault 'UIlde.r tb~ terms and provisions of the Lea..c;e. Accordingly, Landlord hereby demands that Tenant immediately s1.1:rTender possession of the Premises and remove all of its effects therefrom. Demand for possession of the l~remises is hereby made. In the event neither payment nor surrender of the Premises is made as required herein, immediate action shall be taken pursuant to state statute to have Tenant dispossessed. Such diSPOS91:S50ry action win be in addition to~ and not in lieu of, any rmd all other rights and remedies available to Landlord under the terms and conditions of the Lease or at law Or in equity for the coUootion of unpaid rent Ilnd other amounts owing. Landlord is waiving no other default by you UDder the Lease by virtue of this letter and is reserving all of its rights and remedies with respect tber=.to. Please oon~ct me immediately at (866) 570-5772 to make arrangements for the payment of the amounts due. Sinoerely. In1~ Mid-Atlantic Management Corp. ~~&~ Livinda L. Dunham Property Manager Exhibit D AUG.09'2004 16:31 630 218 4900 Inland Group-Law #5391 P.002/007 a-- ASSIG.NMENT OF LEAS,E;S AND SECURITY l~EPOSI1A TInS ASSIGNMENT OF LEASES AND SECURITY DEPOSITS is executed by and between M.J. Community Center, LLC, ("Assignor"), a Pennsylvania limited liabiltty company, and Inland Southeast Carlisle DST ("Purchaser"), a Delaware statutory trust, as of the 2nd day of September, 2003. . RECITALS: A. Assignor and Purchaser's assignor, Inland Real Estate Acquisitions, Inc., entered into a certain letter agreement dated January 22, 2003 and executed .Tanu~, 28, 2003, for the sale and purcha..~ of the property commonly known as Carlisle Commons Shopping Center, Carlisle, Pennsylvania (l'Premises"), which contract requires the conveyance of the Premises and the Leases thereon to Purchaser; and, B. Assignor is the landlord under various leases C'Leases") for commercial spaces on the Premises which Leases are identified on the rent roll r~ent Roll") attached hereto as "Exhibit A" and made a part hereof, which Assignor certifies is true and correct; and, C. Pursuant to the terms of certain Leases, certain tenants thereof have paid to Assignor certain security deposits C'Security Deposits"), which are listed on the Rent Roll; and, D. Assignor desires to assign and transfer all of its right, title and interest in the Leases, including aU rents ("Rentst9), due or to become due under the Leases on or after September 2, 2003 ("Proration Date"), and in the Security DePosits, to Purchaser in accordance with the terms herein set forth. NOW THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Assignment Assignor hereby absolutely sells, assigns, transfers and conveys all of its right; title arid interest in and to the Leases, the Rents and the Security Deposits to Purchaser. Assignor represents and warrants to Purchaser that as of the date hereof and the Proration Date, (i) the Leases are in full force and effect, there exist no defaults by Assignor under the Leases and Assignor has fully performed all of its obligations under the Leases thr()ugh the Proration Date and (ii) that Assignor has not previously sold, conveyed or assigned, or purported to sen, conveyor assign, the Leases or Rents absolutely or for security, except to the mortgagee of record, ifany, which assignment shall be released at closing of the sale of the Premises to Purchaser. 2. Purchaser Assumption and Indemnificatio.n. Purchaser hereby assumes all of Assignor's obligations under the Leases solely to the extent that such olbligations first arise and accrue and relate solely to acts or omis'sions first occuning on or after the Proration Date and hereby asswnes all obligations with respect to the refund ofSccurity D~posits i~d interest, if any, required to be paid thf;reon to the tenants of the Leases, pursuant to and in accordance with the terms and provisions of the Leases, but only to the extent that such Security Deposits are identified on the Rent Roll and are accounted for in writing to the Purchaser. Purchaser hereby agrees to defend, indemnify, save and hold Assignor, and its directors, officers, partners, members, employees and agents, and parent, subsidiary and affiliate corporations and each of their respective successor and Doc:S7929/1 11 AUG.09'2004 16:31 630 218 4900 Inland Group-Law i I I I I I ~ firm, associations, cwporati~ organization, partp.ersh.ipl, venture or govc:mmentaI entity for monies now or hereafter owed 0," claimed to be owed /to the:Q:l with respect to the obligations of Ac;signor under the Service Contracts, required 11) be perfimnt~ prior to the Transfer Date. Purchaser hereby agrees to d.efen~ indemnify, save and ~ld Assignor, ad its directors, ofti~ employees and alents, and parent, sub8idiaty and a:fflliate corporations sad each of their respective successors and assigns harmless from md agamst Ill)/" and all liabilities. obligations, cla~ damag~ ju.dgm.eJ.\t~ II1d ~s, including reatonabh: attomeys fees, arlsiD.g iiom auy and an claims, ~ or acti.o:us or causes of action. Itlade ~ my ]~erson, finD, associations, QOIpOfIti~ organ..mmon, partnership, venture or gov~tal,Em.tity for monies IlOW or hereafter owed or c1aim.ed to be owed to them with respeCt to the, obligations of the Assignor required to be perfonned. under the Service Con.tlacts on bt aftctt the Transfer Date. I , 4. Counter;parts. ThiB ASRignment ma:r be decuted in any number of cmmteIparts and by each of the UDCtersigned on separate counterp. imd eacit such counterpart sh4U be deemed to be an original, but all such countetparts put together !:b.aD constitute but one and the same Assignmtmt. i #5391 P.003/007 .") ) / s. In~ This Assignment shall be binding '~OD. ad inure to the benefit of the paxties hereto, and their respective SUCCCSSOt'S, a ssi~ and grantees. I I I IN WITNESS WHEREOF, this Assignment ofSc;rvice Contracts has been exec:uted as of the day and year first above written. I ASSIGNOa,: i MJ. COMMUNITY CENTER, u.c By: Kmtsa c.iarlisle .~ciates. LP~ Managing Member : I By: Kensa Propert.U~ lLC) General Partner , B~ krr -~ I I PURCHASER: I ! INLAND SOUTHEAST CAlU.ISLE DST) a Delaware ~orytr",. By: ID.'land Retail R.~l.Estate Trust, Inc., a Muyll\Dd ~oratkm, its SigDatmy Trustee By: Its: 000:57976/1 AUG.09'2004 16:32 630 218 4900 Inland Group-Law i #5391 P.004/007 I I assigns harmless from and against any and all liabilities, obli~tions, c~lairos, damages, judgments, and expenses, including reasonable attorneys fees, arising frorrt any and all claims, suits, or actions or causes of action made by any person, finn, associations, corpotation, I)rganization, partnership, venture or governmental entity for monies now or hereafter o~ed 01' claimed to be owed to them with respect to security deposit obligations so assigned and lease obligations ofJandlord/lessor under the Leases required to be perfonned on and after the Proration Da~. I 3 . Assignor Indemnification. Assignor hereby a~es to defend, indemnify, save and hold Purchaser, and its directors, officers, partners, members, depositc1l"S, benefioiaries, employees and agents, and parent, subsidiary and affiliate oorporations anU each ()ftheir respective successor and assigns hannless from and against any and aJl1iabilities, o~ligatio:t1s, claims, damages, judgments, and expenses. including reasonable attorneys fees. ~sing :from any and all claims, suits, or actions or causes of action made by any person. finn. associations. (x>rporation. organization. partnership, venture or governmental entity for monies now or ~ereafl:l~r owed or claimed to be owed to them with respect to security deposit obligations or lea.c:;e obligation:; of landlord/lessor under the Lenses required to be perfonned prior'tc! the Proration Date. : i 4. Counterparts. This Assignment may be executed in any number of countelparts and by each of the undersigned on separate counterparts. and each ~ch COlmterpart shall be deemed to be an original, but all such oounterparts put together shall consti~e but one and the same Assignment. I I s. IUUI'e.mem. This Assignment shall be bindi~g upon and inure to the benefit of the parties hereto. and their respective. heirs, successors and assigns, I. IN WITNESS WHEREOF, this Assignment of Leases ~d Security Deposits has been executed as of the day and year first above written. : i ASSIGNOR: I I I i M.J. COMMUNITY C~R, LLC By: Kensa Carlisle ASS(lciates, LP, Managing Member By: Kensa Properties L~C, Genl~ral Partner By: i Its: President i I PURCHASER: i Doc:S7929/1 i XNLAND SOUTHEASi CARL1SLE DST. a Delaware statutory trust . By: Inland Retail Real l!state Trust, Inc., II Maryland corporation, its Signato~ Truste'e ~-#4JF= I ! Inland Group-Law I I I I I , I i I ! STATEOFPENNSYLVANIA ) I )SS ! COUNTYOF ~) I . .I, the 1l11.dersiped, a Notaty Public in and for ttte Cow:aty and State aforesaid, do hereby certify that Broce E. Haney, President of Kensa ProPerties LLC.. General Partac{ of Kensa Carlisle Associates, LP, Managing :Member ofM.J. Co~nity Center, LLC, pe.rsonaJIy know.a to me to be the same person whose name is Sllibso.n~ to 1he foregoing mstr\lment as such Prefdde.ut, ssppeared before me this day in person IUld aqko.owledged that he Iigtled 8D.d delivered the said instnunent u.his own :free and voJuntay act, ~d as 1the free and volwrtaty act of said Company, for the uses and pmposes therein set forth.. ~ I GlVENUtldermyhandaudnotarlalsealthis fG) dJayof ~ .2003. Hatattal8MI I Su!annt'" '==~ PublIe i vL.., l,.. /J ~e.,.o.,~_ N~~'~ , i i I I I, the uadersigned, a Notary Public in and for ~e Co\Ulty and State af~ do hereby certifY that ...... . _ ot Inlaluillletai1 Real Estate Trast, Inc., Si8natmy Tmstee of Inland Southeast CarHsle .DST, personaJly mown to me to be the same person whOle name is subscn'bed to the for.cgomg mstnUneut as snch . appeared kfb.re me this day in person and Kbtowledged that he/she signed and delivered the said instra.ment as hislher own free and vohmtaty aa"imd as the free and vohmtary act of said Tmst, fur 1:he uses 81\d pllIPOSeS therein. set forth. ! GIVBN under my haild and notarial seal thisl 2003. i AUG.09'2004 16:32 630 218 4900 '") STATE OF RLlNOIS COUNTY OF DUPAGE Doo:S7976/1 ) )SS ) N~aty Publlic ! I #5391 P.005/007 .J _ day of AUG.09'2004 16:32 630 218 4900 Inland GrOUp-La~ I I #5391 P.006/007 I I I I I I I i I, the undersigned, a Notary Public in and for the CO'!mty and State aforesaid, do hereby certify that Bruce E. Haney, President of Kensa Properties L~C, GElneral Partner of Kensa Carlisle Associates, LP, Managing Member afM.J. Community Cc:nter, LLC, personally known to me to be the same person whose name is subscribed to th~ foregc)ing instrument as such President, appeared before me this day in person and ackno~ledged that he signed and delivered the said instrument as his own free and voluntary act, and as/the free and V01W1tary act of said Company, for the uses and purposes therein set forth. ! i I i day of I STATE OF PENNSYLVANIA COUNTY OF ) ) 55 ) GIVEN under my hand and notarial seal this . 2003. Notary rublic ! i i I I I I I I, the underst;:ed, a Notary Public in and for the Co~ty and State aforesaid, do hereby certify tha~ 2Ir<<i ,~ I.,.,MlofInlan+ R~tail Real Estate Trust, Inc., Signatory rustee of Inland Southeasicarifs~, person~ly known to me to be the same person whose nazne is subscribed to 1he foregoing instrument as suc:h , appeared before me this day in person and acknowledged th~t he/sh,~ signed and delivered the said instrument as his/her own free and vOluntary act, and as: the free and vo tary act of said Trust, ~or the uses and purposes therein set forth. ~ : GIVEN under my hand and notarial seal this 0 -t day 0: 2003. i ~ . I, ... ..~~ YkN p!~ 1'/ .~. ~ ~:i . 1'Iublte, t;.mon CCNJT.I1y, Qco1Qio , I .' ~~omrnIu1Cl~ E:.pil'llSAugu;t 15. 2003 I " " ,'c, . .. " " xI . ' " I i I I i I ) ) SS ) STATE OF COUNTY OF Doc;S7929/1 I L Inland Group-Law I \ I I I \ i Raint DIN' Month $ ~e29.75 $ 23.750.00 $ 1~768.67 I I 004 Waf Malt 205.305 $ 117i301.75 F'nH'ata $ 117,301.75 + d' r- (Jr..,,' .....~.. ~r ......w. .I....... 1"\.7'- ..0;" :JtF.... "fit,. ": l.' ~ ,", ".':-.. I~" '9!''''~... .r..w... ~.'.' '!::. ,~"W,.'_~_~'I, ...~'.. ..~..... __...........!!!!!!.I.;.....:'~.. ~~,.......-o:'\...__, ~~_ .-.F.;.....w. ~~~.:..~~... ...--: ..~'..~. .:1_, .~ 100' ....ea.G8m. -=-.'.. _"H''''''' ....1:a-. .~. $ .. 2~613.00 .. s..--c 480.29' "s" ao13,29 110 NiIlIOt'\aCnhActoJ&nCe 1.208 $ 1~700.00 $ 458.00 $ 2.158.00 120 Allegany Optical 1.206 $ 2.211.00 $ 460.29 $ 2.871.29 130 ~ 1,206 S 2.p10.ClO $ 460.29 $ 2.470.29 140 Ho1idayHSr 1.208 S 1.!:J($.OO S 480..29 $ 2.269.29 150 AT&T WnlM8 1,747 $ 3A94.ao $ 581.95 S 4.055.95 20D Fathton Bug I FMbIon Bug ~ 8.487 $ 8,~7.00 $ 2, 178.33 $ 10.ees.33 300 ShoeDepartment 5,070 S 5.~.50 S 1,174.55 $ 8,887.05 400 c.II1eSUP<<'ButI'C 7.835 $ 6,044.38 $ 1.832.~1 $ 7,878.79 5CIO MIdtt_Waretlou8e 3.813 $ ~,114.B6' $ 978.68 $ 5.093.54 700 Rent-A.-Center 3.850 S 4.010.42 $ 988.17 $ 4,998.59 800 CoConI.Ifs 5.200 $ 6,088.67 S 1,334.67 $ 7,~.34 850 VACANT 1,351 I 900 PlU1etI Bread 5,149 $ 7,800.00 $ 1.551.34 $ 9.351.34 . lI......~ ;~.It. i~J!' ;r'"p' ;.\1,}..0* ~..;" 'Q':~ ~.." ~...~. ...;~~, ,"~' .", / :w.": '.' J.;.. !fr.., ~:.:. '7"~' .~: "'.N . ~..,.; -:.-;: .... JA. ._~-_.._... ""'--.._o..-.- ..."" . -...............,.. .....: ... .:.'~. - .. .__,.,_,0._., ."-'.i(; .-."... ...... _, ",./. .. -3".-..,. """,. . .._..._~" '~\-C::~~""""_-~...."'."'__.....__ --- ..--.;....-,.i,--5W.....~'f".___._to.. ......~.r... ..., ,.. - ....., ...... ... _' ~_. ..w '.......-.~...~..r....~-:j, .__.. . ~_., GL1 ~8 "- . 21,000 $18,7;00.00 $ 2.2S3.~ $. '20,983.45.' Gl3 ll'8etor SuJlpIy Co. 19,872 $ 8.~.91 $ 3,538.50 $ 11,903.41 0P2 Applebee.. 8,572 $ .4,~.33 $ 25.00 $ 4,eos.33 OP4 Commerce Bank 3.750 $ 6.250.00 $ 312.50 $ 6,562.SCJ I AUG.09'2004 16:33 630 218 4900 .) CdsIe Coft~ ~ntRoII UftIt Tenant 001 RotlS Dreee for Lee. 002 T J Maxx 0CI3 Sears RebID 0IIItet .IE 30.173 30,719 23,650 #5391 p.007/007 ') Date: 8128103 ExIrDs TobIl Dll'Mo9I' ... MDnth $ 1.181.78 $ 23.8'1.53 $ 2.592.75 $ 26.342..15 Increnet owr $ 15.788.87 bae yr. n ,.....) 0 C.~';J C C'J -q ..L:- ~ ~ "'- C"J --I ~'"t r '*' . ~T'l ~ ~ r"! r-'-i 1"11 f~'::: ~ c-) -n rn , ::-1<:2 ~ ~ ~ C'" , , ~:,:! ~fj ~ ~ \ -n l^.:l' ,- , ~ ( ; <11'(1 \ ~::. ~: . ('.,,) ^ ~\ ~ .- -, ~ I f.,A..) >:-":-J '0 ~. -', -< ~ , DUANE MORRIS LLP Kevin Ray, Esquire Identification No. 88122 4200 One Liberty Place Philadelphia, PA 19103 (215) 979-1567 Attorneys for Plaintiff. Inland Southeast Carlisle DST IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY OF PENNSYLVANIA INLAND SOUTHEAST CARLISLE DST, successor-in-interest to M.J. Community Center, LLC CIVIL ACTION - LAW NO. 04-6100 - Civil Plaintiff, v. WATCHUNG INTERNATIONAL LLC, Defendant. PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Please reinstate the Complaint in Confession of Judgment for Money originally issued in the above captioned matter on December 6, 2004, and attached hereto as Exhibit A. Date: March 9, 2005 DUANE MORRIS LLP By: PH111418732.1 3i9/05 "